Jeffery Arnold Thrift v. State

Jeffery Arnold Thrift v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-00201-CR

     JEFFERY ARNOLD THRIFT,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-844-C

                                                                                                                                                                                                                          

DISSENTING AND CONCURRING OPINION

                                                                                                                

      This is a simple case. An element of the indecency with a child count that the State must prove is whether by touching the genitals of a minor, Thrift did so “...with the intent to arouse or gratify the sexual desire of ...” Thrift. As an element of the indicted offense, it had to be proven beyond a reasonable doubt by the State. The trial court admitted four photographs of naked boys found in a book in Thrift’s room. The trial court gave a limiting instruction about using the photographs only for the purpose of proving this element of the offense and no other.

      I take issue with certain aspects of the majority’s decision to reverse the trial court’s judgment on this count. But I will limit my comments because we have been down this road before, albeit with a different result. Graff v. State, 65 S.W.3d 730 (Tex. App.—Waco 2001, pet. ref’d).

      While the majority lists the relevant criteria for review of a trial court’s ruling on a 403 objection, it only mentions one in the discussion: that a limiting instruction would not have been effective. Because the court gave a limiting instruction, the majority apparently means the limiting instruction given was not effective. But that is not my main concern. I am concerned that there is no discussion as to why the “graphic images where of a nature” that would make a limiting instruction ineffective. And I wonder why there is no discussion of any of the other criteria. I understand that it takes the demonstration of only one criteria to conclude that the trial court abused its discretion. But without an analysis of the effect of the limiting instruction on this criteria, would a discussion of the other criteria lead to a conclusion that a limiting instruction was effective as to all of them? Maybe, maybe not. But without any discussion of the other criteria and no discussion as to why a limiting instruction is not effective, I cannot agree to hold that the trial court abused its discretion; i.e., that the trial court was outside the zone of reasonable disagreement. Graff, 65 S.W.3d at 739.

      Indirect proof of Thrift’s intent in touching the minor is clearly admissible. The element of intent had to be proven to obtain a conviction. Showing to the jury pictures of other naked boys that were found hidden in a book in Thrift’s bedroom would tend to show that Thrift was aroused or gratified by young males and that was his intent by touching the minor. The relevance of the evidence is not the issue. And the majority does not take issue with the relevance of the evidence. Rather, the majority contends that the probative value of the photographs to establish this element of the State’s case was substantially outweighed by the danger of unfair prejudice. Actually, the majority does not tell us if the photographs were inadmissible because of the danger of unfair prejudice, confusion of the issues, or the tendency of the evidence to mislead the jury, though the objection was only that the photographs were unfairly prejudicial.

      But again, the majority does not tell us what is unfairly prejudicial about the photographs, assuming that this is the reason for the exclusion of the photographs. They rely on what they have decided is the relatively low need for the evidence of intent, to reduce only one side of the equation–the probative value of the photographs. The majority states that the issue of intent was not in controversy because Thrift’s defense was that “...the incident never occurred.”

      The State takes a different view of the balancing test, as do I, because the element of intent was controverted. When a defendant contends an event did not occur, that denial puts every element of the offense in issue, as it is with any not-guilty plea. See Old Chief v. U.S., 519 U.S. 172, 199-200, 117 S. Ct. 644, 659, 136 L. Ed. 2d 574 (1997); Tex. Code Crim. Proc. Ann. art. 27.17 (Vernon 1989). Thus, the State certainly was justified in feeling compelled to prove every element of the offense that the legislature requires be proven before Thrift could be convicted.

      But the majority has decided the evidence was not needed: unnecessary piling-on. It wants to circumscribe what evidence the State may use, thus limiting its ability to prove its case. They are deciding for the State, after the trial, how much of the relevant evidence is needed to prove an element of the offense. The majority states: “Under this evidence, Thrift’s intent to gratify himself by touching JB was not in controversy—why else would he have touched JB’s penis and performed oral sex on him?”

      Of course the element was in controversy because Thrift pled not-guilty. And if intent to gratify was always to be inferred from the conduct alone, there would be no need for the separate element of intent to arouse or gratify the sexual desires of the defendant. Did Thrift share with the State what his defense would be? Would it really matter? Should a defendant be allowed to take a defensive position and thereby limit what evidence the State could use to obtain a conviction? We were not there. We rely upon the jury. The jury was given a very specific instruction about the use of this evidence. The majority believes they could not follow that instruction.

      While the majority seems comfortable with its conclusion of why Thrift was touching JB, I am not. As long as we are going to speculate, maybe Thrift simply wanted to gratify JB, not himself; maybe he was paid to gratify JB; maybe he was going to receive alcohol or drugs in return for gratifying JB. The truth is, we do not know. The photographs were intended to assist the jury in deciding why an 18 year old male would touch the penis of a 14 year old male. The jury was properly instructed about how to use the evidence.

      But this rhetorical question asked by the majority —“why else would he have touched JB’s penis and performed oral sex on him?”— also shows that their harm analysis is flawed. We have just recently set out the harm analysis to be used for Rule 403 error. Graff, 65 S.W.3d at 741-742. Why the majority completely disregards our precedent, I do not know. The evidence of Thrift’s guilt, while controverted, was substantial. The State did not place much emphasis on the photographs. And other extraneous evidence, four prior misdemeanor convictions which reflected poorly on Thrift’s character, was admitted without objection. Under the proper analysis, the error, if any, was harmless.

      I have no trouble in reviewing this case, especially in view of the limiting instruction, and holding that the trial court did not abuse its discretion—the trial court was not outside the bounds of reasonable disagreement—by admitting the photographs into evidence. I would overrule this issue and affirm the trial court’s judgment in its entirety. Because the majority does not, I respectfully dissent from that portion of this Court’s judgment which reverses Thrift’s conviction for indecency with a child.

      I concur in affirming the judgment of conviction on sexual assault of a child.

 

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting and concurring opinion delivered and filed March 17, 2004

Publish

ganization falls within the statutory exception is on the claimant seeking the exemption.  Id.

            Among other Tax Code requirements to obtain a subsection 11.182(b) exemption, Arbors must have complied with subsection 11.182(g), which the Legislature added to section 11.182 in 2001:

(g) To receive an exemption under Subsection (b) or (f), an organization must annually have an audit prepared by an independent auditor.  The audit must include a detailed report on the organization’s sources and uses of funds.  A copy of the audit must be delivered to the Texas Department of Housing and Community Affairs and to the chief appraiser of the appraisal district in which the property subject to the exemption is located.

 

Act of May 21, 2001, 77th Leg., R.S., ch. 1191, § 1, 2001 Tex. Gen. Laws 2694, 2696 (emphasis added) (current version at Tex. Prop. Tax Code § 11.182(g) (Vernon 2008)).

            One of the grounds in the Appraisal District’s no-evidence motion for summary judgment was that there was no evidence that Arbors had met subsection 11.182(g)’s audit requirements.  In response, in each case Arbors filed summary-judgment evidence, including the affidavit of Carol McBride, which states in pertinent part:

Arbors has expended an amount equal to or greater than 40% of its annual tax savings on social programs in Walker County.  Each year since its acquisition of the Property, Arbors has provided an audit to the chief appraiser detailing the fact that such expenditures have been made, and for the years 2004, 2005, and 2006, the audit has also included an opinion of the auditor that the Property, and Arbors as owner, has been in full compliance with Texas Tax Code Sec. 11.182.[1]

 

On appeal, the Appraisal District urges that the trial court properly granted its no-evidence motion for summary judgment on the ground that Arbors did not provide summary-judgment evidence that it fully complied with subsection 11.182(g) because McBride’s affidavit fails to show that Arbors delivered its audits to the Texas Department of Housing and Community Affairs.  We agree. 

To defeat the Appraisal District’s no-evidence motion, Arbors was required to present some evidence that it delivered its audits to the Texas Department of Housing and Community Affairs, but it did not do so.  And to be entitled to summary judgment on its own motion, Arbors must have clearly shown its compliance with subsection 11.182(g).  North Alamo, 804 S.W.2d at 899.  It failed to do so.  The trial court could have properly granted the Appraisal District’s no-evidence motion and denied Arbors’s motion on subsection 11.182(g) alone.  See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).  We overrule Arbors’s second and third issues in each case and need not address its first issue in each case.

The trial court’s judgment in each case is affirmed.

 

 

REX D. DAVIS

Justice

           

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed July 21, 2010

[CV06]

 

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[1] The trial court sustained the Appraisal District’s objections to this paragraph of McBride’s affidavit.  We will assume without deciding that the trial court’s ruling was erroneous.