IN THE
TENTH COURT OF APPEALS
No. 10-01-125-CR
No. 10-01-126-CR
ROBERT RAY BOYCE
A/K/A ROBERT JACKSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 232nd District Court
Harris County, Texas
Trial Court Nos. 854,514 and 850,441
O P I N I O N
Robert Ray Boyce appeals his convictions for two offenses: (1) cause number 10-01-125-CR, attempted aggravated sexual assault; and (2) cause number 10-01-126-CR, aggravated sexual assault. He raises a single but different issue in each cause. We will affirm.
FACTUAL BACKGROUND
The following events took place in Harris County. Sherri Locke and Robert Ray Boyce are the biological parents of R.B. Although Locke and Boyce never married, they maintained an “on and off” relationship. At all times, Locke had full custody of R.B and was the child’s primary caretaker. Periodically, Boyce would live in Locke’s household and then leave for months at a time. During the summer of 2000, Boyce was living in her home. At the time, Locke was a postal employee working during the day, Monday through Friday. That summer, R.B. was six-years old, and she attended a day care program while her mother worked. In June, Locke told R.B. that she could not attend the day care program any longer and that Boyce would take care of her. R.B. objected and told her mother that she did not want to stay with Boyce. R.B. also said that Boyce had put his penis on her and that he told her to keep it a secret. Although Locke was concerned, she thought this may have accidentally happened because R.B. occasionally climbed into bed with Locke and Boyce and neither of them wore night clothes. Moreover, Locke did not believe Boyce would do such a thing, at least on purpose. Nevertheless, Locke allowed R.B. to remain in the day care program.
On July 18, 2000, Boyce insisted that R.B. stay home from day care so that he could spend time with her. R.B. did not go to the program that day. While Locke was at work, Boyce told R.B. to go into the master bedroom and get on the bed. He also told her to remove her clothing. She complied, climbed on the bed, and Boyce removed his clothing. Boyce got on the bed with R.B. and sexually assaulted her by placing his penis inside of her vagina and anus. He also placed his mouth on her vagina, and he had her place her hand on his penis. In addition, Boyce told her to place her mouth on his penis, but she refused to do so. Boyce used “Vaseline” during the course of the sexual assault. After Boyce ejaculated, he used a washcloth to wipe the semen off of R.B. Boyce then told her not to tell anyone or he would go to jail.
On the morning of July 19th, while Boyce was sleeping, R.B. told her mother what had happened. She told her mother that she “was [still] hurting.” Without waking Boyce, R.B. and her mother went to the Children’s Assessment Center of Houston for R.B. to be examined. The Children’s Assessment Center is a multi-disciplinary center in which Houston police officers, employees of Child Protective Services, and doctors of a University of Texas medical clinic work together to help children who may have been sexually abused. The doctors at the clinic are responsible for a physical examination of a child who presents an allegation of possible sexual abuse. Dr. Sheela Lahoti of the Center examined R.B. that day. Her examination revealed evidence of penetrating vaginal trauma to R.B.
PROCEDURAL BACKGROUND
Cause No. 10-01-125-CR
Boyce was charged with the offense of aggravated sexual assault of a child. The indictment alleged that Boyce committed the offense by causing the mouth of R.B. to contact his sexual organ. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(v) (Vernon Supp. 2002). Boyce pled not guilty to the indictment. As a matter of law, however, the State’s evidence presented in its case-in-chief was insufficient to support a verdict finding Boyce guilty of aggravated sexual assault. Instead, the jury was charged with considering whether he was guilty of the lesser offense of attempted aggravated sexual assault. Id. §§ 15.01, 22.021. The jury found Boyce guilty of that offense. Before trial, Boyce filed a motion electing to have the jury assess punishment in the event of a guilty verdict. Boyce also pled true to allegations in an enhancement paragraph. The jury found the allegations in the enhancement paragraph to be true and assessed punishment at confinement for sixty years in prison. Boyce appeals his conviction and complains there was an error in the jury charge on guilt or innocence.
Cause No. 10-01-126-CR
Boyce was charged in a separate indictment with aggravated sexual assault of a child. The indictment alleged that Boyce committed the offense by penetrating R.B.’s sexual organ with his own sexual organ. Id. § 22.021(a)(1)(B)(i). He pled not guilty, but the jury found him guilty of the offense. Prior to trial, Boyce filed a motion electing to have the jury assess punishment if he was found guilty. Boyce again pled true to allegations in an enhancement paragraph. The jury found the allegations in the enhancement paragraph to be true and assessed punishment at confinement for life in prison and a ten-thousand dollar fine. Boyce appeals his conviction and argues that the trial court erred by allowing a witness for the State to read into evidence R.B.’s hearsay statements contained in a medical report under the “medical diagnosis” exception to the hearsay rule. Tex. R. Evid. 803(4).
CAUSE NO. 10-01-125-CR
Issue presented
On appeal from his conviction for attempted aggravated sexual assault, Boyce contends that the application paragraph of the jury charge on guilt or innocence contained two errors: (1) a portion of the paragraph constituted a comment on the weight of the evidence; and (2) that same portion also amounted to a violation of article 38.05 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).
Applicable law
Comment on the Weight of the Evidence
The trial court should set forth the applicable law of the case in the jury charge without “expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in [its] charge calculated to arouse the sympathy or excite the passions of the jury.” Id. art. 36.14 (Vernon Supp. 2002). A trial court should never give the jury an instruction that constitutes a comment on the elements of the alleged offense or assumes a disputed fact. Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1982); Smith v. State, 959 S.W.2d 1, 27 (Tex. App.—Waco 1997, pet. ref’d). A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Smith, 959 S.W.2d at 27. In reviewing a possible error in the application paragraph of the charge, we read the charge as a whole in order to “flesh out and explain the application paragraph.” Doyle v. State, 631 S.W.2d 732, 738 (Tex. Crim. App. 1980) (opinion on reh’g); McGowan v. State, 938 S.W.2d 732, 739 (Tex. App.—Houston [14th Dist.] 1996), aff’d, 975 S.W.2d 621 (Tex. Crim. App. 1998).
Article 38.05 of the Code of Criminal Procedure
Article 38.05 of the Code of Criminal Procedure, entitled “Judge shall not discuss evidence,” states:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
Tex. Code Crim. Proc. Ann. art. 38.05 (emphasis added). A defendant may complain that an error in the jury charge on guilt or innocence is “a prejudicial comment in contradiction to Article 38.05 . . . .” Selman v. State, 807 S.W.2d 310, 312 (Tex. Crim. App. 1991). To determine that remarks by a trial court constitute a violation of article 38.05, we must find a benefit to the State or an injury to the defendant. Id.
Standard of review
In Almanza v. State, the Court of Criminal Appeals prescribed the manner in which jury charge error is reviewed on appeal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opinion on reh’g). First, we must determine whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). Second, we must determine whether the error caused sufficient harm to require reversal. Id. at 170-71. The degree of harm required for reversal depends on whether the complaint was preserved. Id. at 171. A complaint properly preserved by an objection to the charge will require reversal “as long as the error is not harmless.” Id. (citing Almanza, 686 S.W.2d at 171). However, when the charging-error complaint is not preserved, the standard is “egregious harm.” Id.
Application
We initially address the question of whether error exists in the charge. Id. at 170. At trial, Boyce’s defense counsel objected to the application paragraph in the charge, which states:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 18th day of July, 2000, in Harris County, Texas, the defendant, Robert Ray Boyce also known as Robert Jackson, did then and there unlawfully, intentionally, with the specific intent to commit the offense of aggravated sexual assault of [R.B.], do an act, to wit: ask [R.B.] to put her mouth on his sexual organ, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended, then you will find the defendant guilty of attempted aggravated sexual assault.
Specifically, defense counsel objected to the following portion of the application paragraph: “do an act, to wit: ask [R.B.] to put her mouth on his sexual organ, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended . . . .” Counsel argued to the trial court that the quoted portion amounted to the court’s commenting on the weight of the evidence because it essentially told the jury that the defendant’s alleged “act” of asking R.B. to put her mouth on his penis constituted the criminal attempt to commit the underlying offense. The State responded that the application paragraph merely stated the manner in which Boyce allegedly committed the criminal attempt of the greater offense. In other words, the State argued that the application paragraph required the jury to initially find beyond a reasonable doubt that Boyce did the alleged “act,” i.e., “ask [R.B.] to put her mouth on his sexual organ,” and then determine beyond a reasonable doubt whether that “act” amounted to more than mere preparation to commit the intended offense. The court agreed with the State’s argument and overruled counsel’s objection to the charge. On appeal, Boyce raises the same argument that was rejected by the trial court.
We have reviewed the application paragraph and the entire charge itself. Doyle, 631 S.W.2d at 738; McGowan, 938 S.W.2d at 739. We agree with the State that the contested portion of the paragraph merely requires the jury (1) to find beyond a reasonable doubt that Boyce did “ask [R.B.] to put her mouth on his sexual organ,” and (2) to determine beyond a reasonable doubt if that act constituted more than mere preparation to commit the intended offense of aggravated sexual assault. Accordingly, we conclude that the disputed language does not constitute a comment on the elements of the alleged offense. Grady, 634 S.W.2d at 317; Smith, 959 S.W.2d at 27. As noted, the paragraph asks the jury to determine if Boyce asked R.B. to put her mouth on his sexual organ. Therefore, we further conclude that the disputed portion does not assume the truth of a controverted issue because it clearly asks the jury to decide whether Boyce asked R.B. or not. Whaley, 717 S.W.2d at 32; Smith, 959 S.W.2d at 27. Thus, we reject Boyce’s argument that the contested portion amounted to a comment on the weight of the evidence.
However, on appeal Boyce also contends that the objected-to portion of the application paragraph violates article 38.05 of the Code of Criminal Procedure, because under that article, the trial court is prohibited “at any stage of the proceeding previous to the return of the verdict, [from] mak[ing] any remark calculated to convey to the jury [the court’s] opinion of the case.” Tex. Code Crim. Proc. Ann. art. 38.05. Boyce did not present this argument at trial, and an objection based on one ground cannot be used to support a different legal theory on appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993). Nevertheless, we must consider the argument, but if we find error we review for whether “egregious harm” arose from the error. Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999). The State did not present any argument on appeal regarding the alleged article 38.05 violation.
Because we have already concluded that the disputed language did not amount to a comment on the weight of the evidence, we similarly conclude, and for the same reasons, that the language was not “a prejudicial comment [on the evidence] in contradiction to Article 38.05 . . . .” Selman, 807 S.W.2d at 312. Therefore, again, we find no error.
In conclusion, having rejected Boyce’s arguments, we find there was no error in the charge. Because we find no error, we need not discuss whether there was sufficient harm to require reversal. Hutch, 922 S.W.2d at 170-71. Accordingly, we overrule Boyce’s sole issue and will affirm his conviction for attempted aggravated sexual assault.
CAUSE NO. 10-01-126-CR
Issue presented
On appeal from his conviction for aggravated sexual assault, Boyce argues that the trial court erred by overruling his hearsay objection to Dr. Margaret McNeese’s testimony in which she read statements by R.B. that were made to Dr. Sheela Lahoti of the Children’s Assessment Center and recorded by Dr. Lahoti in a medical report. The court admitted the statements under the “medical diagnosis” exception to the hearsay rule. Tex. R. Evid. 803(4). Boyce contends that the prosecution failed to satisfy the elements of that hearsay exception, and thus, the statements were inadmissible hearsay.
Preservation of complaint
We initially consider whether Boyce waived his objection to Dr. McNeese’s reading of Lahoti’s report by failing to object to the admissibility of the medical report. The State argues that Boyce waived his complaint because the medical report itself was admitted first into evidence without limitation and without any objection from defense counsel. The State argues that it was defense counsel’s responsibility at the time the medical report was offered into evidence to object to inadmissible portions of that report. The State further contends that since defense counsel failed to object to the admission of the medical report or any portion thereof, counsel’s subsequent hearsay objection to Dr. McNeese reading from the report was not timely and had already been waived. The record reflects that the entire medical report, which included R.B.’s hearsay statements, was admitted into evidence prior to McNeese reading from it and without objection from Boyce’s defense counsel. Accordingly, we agree with the State that Boyce waived any complaint he might have had about the admissibility of R.B.’s hearsay statements contained in the report. Because Boyce has failed to preserve this issue for our review, we will affirm his conviction for aggravated sexual assault. Tex. R. App. P. 33.1.
CONCLUSION
Having addressed Boyce’s arguments in each appeal, we affirm (1) his conviction for attempted aggravated sexual assault in cause number 10-01-125-CR for which he was sentenced to prison for sixty years and (2) his conviction for aggravated sexual assault in cause number 10-01-126-CR for which he was sentenced to life in prison and a ten-thousand dollar fine.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed February 20, 2002
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