in the Matter of O.T., a Juvenile

Evelyn Maxine Edwards v. State

IN THE

TENTH COURT OF APPEALS

No. 10-98-193-CV

IN THE MATTER OF O.T., A JUVENILE,

From the 73rd District Court

Bexar County, Texas

Trial Court # 97-JUV-03490

                                                                                                                

O P I N I O N

                                                                                                                      Appellant, O.T. was charged by petition with having engaged in delinquent conduct. The specific charges were sexual assault and indecency with a child. Trial was before the Court. Appellant entered pleas of true and was committed to the Texas Youth Commission until his 21st birthday. Appellant seeks reversal of his adjudication and disposition. FACTUAL BACKGROUND

      O.T. was charged with committing sexual assault and indecency with a child, against the same victim, G. T., “on or about May 10, 1997". G. T. turned 14 years old on May, 8, 1997. O.T. is one year older than G. T.

      O.T. molested his cousin, G. T., over a period of several years beginning when G. T. was six years old. On one occasion O.T. touched G. T. under her clothes on her breasts and her “private”. On another occasion, when G. T. was ten years old, O.T. kissed her on her mouth, took off her shirt and bra and put his mouth on her breasts. On yet another occasion in 1995, O.T. took off G. T.’s shorts in the middle of the night and put his private part “halfway, it felt ugly because I didn’t like it. ...Yea, it did hurt.” O.T. told her if he went to jail he would kill her or have someone kill her. The last time O.T. sexually penetrated G. T. with his penis was the incident from which she outcried the day after a school dance.

      O.T. appeals bringing three points of error. His first point of error asserts the trial judge erred by finding both allegations in the petition true, because indecency with a child is a lesser included offense of sexual assault. His second point of error argues he received ineffective assistance of counsel because his attorney failed to raise an affirmative defense on his behalf. His third point of error asserts the trial judge erred by sentencing him to the Texas Youth Commission and by classifying his offenses as a sanction level five, because Texas Family Code §59.003 classifies them as a sanction level four.

ANALYSIS

      O.T.’s first point of error asserts the judge erred in finding him delinquent on both counts charged in the petition in violation of double jeopardy prohibitions because indecency with a child is a lesser included offense of sexual assault. Though O.T. focuses on the “on or about May 10, 1997” language in the indictment when making his double jeopardy arguments, the state is not prevented from showing that acts alleged in the petition occurred on dates other than May 10, 1997, so long as the acts occurred within statutes of limitations. Swabado v. State, 597 S.W.2d 361, 363 (Tex. Crim. App. 1980).

      The double jeopardy doctrine prohibits both cumulative punishment and successive prosecutions for greater and lesser included offenses committed during the same act or transaction. Brown v. Ohio, 432 U.S. 161,165-166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Under the Blockburger test, violations of two statutory provisions constitute separate offense for double jeopardy purposes if “each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If each statute requires proof the other does not, the Blockburger test is met even if the offenses were committed contemporaneously or one offense is committed in aid of the other. Parrish v. State, 869 S.W.2d 352, 354-355 (Tex. Crim. App. 1994).

      Whether indecency with a child is a lesser included offense of aggravated sexual assault of a child is determined on a case by case basis. Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987). A person commits sexual assault against a child if the person “intentionally or knowingly ...causes the penetration of the anus or female sexual organ of a child by any means”; “causes the penetration of the mouth of a child by the sexual organ of the actor”; “causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;” or “causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.” Tex. Penal Code Ann. §22.011. A person commits indecency with a child if “with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he...engages in sexual contact with the child; or...exposes his anus or any part of his genitals, knowing the child is present with intent to arouse or gratify the sexual desire of any person.” Tex. Penal Code Ann. § 22.11(a). Sexual assault against a child may be committed by penetration or any sexual contact. Indecency with a child requires intent to gratify sexual desire and may be committed by sexual contact or sexual exposure. Depending on the circumstances of the molestation, sexual assault may or may not require proof of an additional fact which indecency with a child does not.

      In Cunningham, the evidence was of one incident of abuse and the circumstances of the molestation were such that indecency with a child was a lesser included offense of aggravated sexual assault. Cunningham v. State, 726 S. W. 2d at 155. In this case, O.T. molested G. T. on several different occasions. On at least one occasion his actions met the definition of indecency with a child. On at least one other separate occasion his actions met the definition of sexual assault. In this case, indecency with a child is not a lesser included offense of sexual assault. The evidence supports conviction for both sexual assault and indecency with a child without violating double jeopardy prohibitions, and O.T.’s first point of error is overruled.

      O.T.’s second point of error asserts he received ineffective assistance of counsel due to the failure of trial counsel to assert an affirmative defense on his behalf. To show ineffective assistance of counsel, an appellant must demonstrate (1) his trial counsel’s performance was deficient because it fell below an objective standard of reasonableness and (2) there was a reasonable probability that, but for counsel’s errors, the result of the proceeding would have differed. Strickland v. Washington, 104 S. Ct. 2052, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). The defendant bears the burden of proving ineffective assistance of counsel. Jackson v. State, 877 S. W. 2d 768, 771 (Tex. Crim. App. 1994). The defendant must also overcome the strong presumption that the challenged action was sound trial strategy. Strickland at 2065. The reviewing court should look at the totality of the representation rather than isolated acts or omissions of trial counsel. Id. The reviewing court should not consider that another attorney might have pursued a different course of action. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).

      It is an affirmative defense to sexual assault “that the actor was not more than three years older than the victim, and the victim was a child or 14 years of age or older.” Tex. Penal Code Ann. Sect. 22.011(e). It is an affirmative defense to indecency with a child “that the actor...was not more than three years older than the victim and of the opposite sex; and...did not use duress, force, or a threat against the victim at the time of the offense.” Tex. Penal Code Ann. Sect. 22.11(b). O.T.’s trial counsel did not raise either defense on his behalf.

      O.T. has not met the burden for proving ineffective assistance of counsel. O. T. is not entitled to the affirmative defense against indecency with a child because he used a threat against the victim. O.T. focuses on the “on or about May 10, 1997" language in the petition when claiming the right to the affirmative defense against sexual assault. However, the state is not limited to proving the incidents of sexual assault and indecency with a child occurred on May 10, 1997. Swabado v. State, 597 S. W. 2d at 363.

      The state produced evidence of abuse occurring on several occasions before May 10, 1997, and more importantly, before May 8, 1997, when the victim turned 14. Because all but the final act of sexual assault or indecency with a child occurred before the victim turned fourteen years old, O.T. would have only had a defense to one act of sexual assault. With nothing to explain why trial counsel did not raise either affirmative defense, this court can only conclude his trial strategy may have been not to admit to any of the offenses. Even if O.T.’s counsel had asserted the affirmative defense to the last act of assault, the other incidents of sexual assault and indecency with a child are sufficient to adjudicate him of both counts. O.T. has not met the burden for proving ineffective assistance of counsel because he fails to show how, with reasonable probability, the outcome of the proceeding would have been different, had trial counsel raised the affirmative defenses. O.T.’s second point of error is overruled.

      O.T.’s third point of error asserts that the trial judge erred by classifying his offenses as sanction level five, because the Texas Family Code §59.003 (a)(4) classifies them as sanction level four. Because sexual assault and indecency with a child are classified as second degree felonies, O.T.’s conduct amounted to a sanction level four. See Tex. Penal Code Ann. §§ 22.011, 21.11 (West 1998); Juvenile Justice Code §59.003 (West 1998). O.T. was sentenced to the Texas Youth Commission until his 21st birthday based on a level six sanction. A disposition to the Texas Youth Commission is outside the range of a level four sanction. Juvenile Justice Code Sect. 59.007 (West 1998). A number of factors allow a court to enhance punishment by placing a delinquent child at the next level of sanctions, and the court may impose “appropriate sanctions that are different from those provided in any sanction level”, but the court must explain the reason for the deviation in writing and submit the statement to the juvenile board. Juvenile Justice Code Sect. 59.003(e). While the juvenile court has discretion to deviate from the assigned sanctions, the court did not file written findings explaining the deviation as required by Sect. 59.003(e). O.T.’s third point of error is sustained.

      This cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.

 

                                                                         ROBERT M. CAMPBELL

                                                                         Justice (Sitting by Assignment)

Before Chief Justice Davis,

      Justice Vance and

      Justice Campbell (Sitting by Assignment)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed January 27, 1999

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p;_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b67%20S.W.3d%20229%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=55&_butInline=1&_butinfo=TEX.%20R.%20EVID.%20403&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlW-zSkAz&_md5=e21edd2480f908a9e2e3983d55cfc116">Rule 403, it is not enough that the evidence is ‘prejudicial’ - it must be unfairly prejudicial.”).  Rather than suggesting a decision on an improper basis, Carter’s testimony would place the evidence of Ruffin’s mental state in the proper context and allow the jury to properly evaluate the probative force of the evidence.  The evidence goes to the heart of the main issue in the case: whether Ruffin committed the charged offense.  We cannot say that the jury would have been confused, distracted, or misled by this evidence.  See Ruffin, 270 S.W.3d at 595 (Expressing “confidence that our Texas judges and juries are sufficiently sophisticated to evaluate expert mental-disease testimony in the context of rebutting mens rea just as they are in evaluating an insanity or mental-retardation claim.”).

Finally, the record does not suggest that the testimony would cause “undue delay” or “needless presentation of cumulative evidence.”  Carter’s testimony is not cumulative of other testimony at trial.  The bill of exception consumed approximately nineteen pages of the record, and Carter’s testimony at the punishment phase of trial consumed about forty pages of the record.

In summary, the above factors favor admission of the evidence.  The trial court abused its discretion by excluding Ruffin’s proffered expert testimony under Rule 403. 

We now address whether Ruffin suffered harm as a result of the exclusion of his evidence.  The State argues that harm should be evaluated for non-constitutional error.  Citing Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), Ruffin contends that harm should be evaluated for constitutional error:

The erroneous exclusion of evidence offered under the rules of evidence generally constitutes non-constitutional error and is reviewed under Rule 44.2(b).  The exception is when erroneously excluded evidence offered by the criminal defendant “forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.”  Exclusion of evidence might rise to the level of a constitutional violation if: (1) a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable evidence vital to his defense; or (2) a trial court’s clearly erroneous ruling results in the exclusion of admissible evidence that forms the vital core of a defendant’s theory of defense and effectively prevents him from presenting that defense.  In such a case, Rule 44.2(a), the standard for constitutional errors, would apply.

 

Walters, 247 S.W.3d at 219 (emphasis added).

Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity.  Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005).  It is “simply a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.”  Id.  The standard for non-constitutional error applies.  See Morales v. State, 32 S.W.3d 862, 866-67 (Tex. Crim. App. 2000) (remanding case to the First Court of Appeals to evaluate the exclusion of defendant’s expert testimony for non-constitutional error).

 When evaluating harm from non-constitutional error flowing from the exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless.  Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005).  Any error must be disregarded unless it affected Ruffin’s substantial rights.  See Tex. R. App. P. 44.2(b).

The State argues that Ruffin’s substantial rights were not affected because he was able to present similar testimony from other witnesses, the record contains a wealth of evidence to support the verdict,[1] and the jury must have considered Ruffin’s diminished mental state, having assessed ten years in prison for each count.[2]  

Whether Ruffin knew he was shooting at law enforcement officers was central to the case.  The lay testimony of Ruffin’s mental state amounts to “observational evidence” that was “never put into a mental-disease context or its psychological significance explained.”  Ruffin, 270 S.W.3d at 597.  The jury did not have the opportunity to hear Carter’s testimony, which was relevant to his failure-of-proof defense, and to evaluate its credibility in addition to other evidence presented at trial. 

In Morales v. State, No. 01-99-00457-CR, 2001 Tex. App. LEXIS 3219 (Tex. App.—Houston [1st Dist.] May 17, 2001, no pet.) (not designated for publication), Morales was charged with felony driving while intoxicated.  See Morales, 2001 Tex. App. LEXIS 3219, at *1.  Morales called an acquaintance who testified that he and Morales had four or five beers several hours before the offense; thus, he did not believe that Morales was intoxicated.  Id. at *7.  Morales sought to introduce expert testimony to show that he “would not have been mentally or physically impaired because of the alcohol burn-off rate.”  Id.  When conducting its harm analysis, the First Court noted that the sole issue at trial was whether Morales was driving while intoxicated.  See id. at *9.  Morales’s “primary defense was that he could not have been driving while intoxicated because such a long period of time had elapsed since his last drink.”  Id.  The expert’s testimony would have “substantially bolstered” that defense.  Id. at *9-10.  Although the First Court did not believe that Morales would have been acquitted “but for the trial court’s error,” it could not say with “fair assurance that the excluded testimony would have had no effect, or but slight effect, on the jury’s consideration of [Morales’s] defense.”  Id. at *10.  Morales was harmed because the “jury was not given an opportunity to hear testimony relevant to [his] defense and assess its credibility along with the other evidence in the case.”  Id. 

As in Morales, we do not have a fair assurance that the exclusion of Carter’s testimony did not influence the jury or had but a slight effect.  Because we conclude that Ruffin was harmed by this error, we reverse the judgment and remand this cause to the

trial court for further proceedings consistent with this opinion.

   

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray dissenting with note)*

Reversed and remanded

Opinion delivered and filed September 23, 2009

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*           (Chief Justice Gray dissents.  A separate opinion will not issue.  The admissibility of the evidence is dependent on a balancing test administered by the trial court and even if erroneously excluded must be harmful.  Based on the precedent of this Court, I cannot conclude the trial court erred in his decision to exclude the evidence or that, if erroneous, the exclusion was harmful.)

           

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[1]               On original submission, we noted several facts supporting the verdict: (1) Ruffin had known Brown for years, knew that she was a law enforcement officer, and acknowledged her on the night of the offense; (2) some officers had activated the overhead lights on their patrol cars at the time of their arrival at the scene; (3) the headlights of some patrol cars illuminated the law enforcement markings on other vehicles, as well as officers in uniform; and (4) at some point during the night, Ruffin fired shots at both the officers and a police helicopter.  See Ruffin v. State, 234 S.W.3d 224, 227-28 (Tex. App.—Waco 2007, pet. granted).

 

[2]               Citing Peters v. State, 31 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) and Wilkerson v. State, 766 S.W.2d 795 (Tex. App.—Tyler 1987, writ ref’d), Ruffin contends that exclusion of Carter’s testimony was harmful.  Because these cases involve testimony excluded at the punishment phase, they are not particularly helpful.