NO. 12-05-00379-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIAM THOMAS MOUSER, JR., § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
William Thomas Mouser, Jr. appeals one conviction for aggravated sexual assault of a child, five convictions of indecency with a child, and one conviction of failure to register as a sex offender, for which he was sentenced to imprisonment for life plus an aggregate of imprisonment for one hundred twenty years. Appellant raises four issues on appeal. We affirm.
Background
Appellant was charged by indictment with thirteen counts of inappropriate sexual conduct with three children,1 each of whom resided at the same residence in which Appellant temporarily resided. Appellant was also charged with one count of failure to register as a sex offender.2 Appellant pleaded “not guilty” on all counts and the matter proceeded to a bench trial.
At trial, the three victims, B.M., B.S., and E.S. testified on behalf of the State. E.S.’s brother, B.H., Palestine Police Department Officer Patty Reed, Jennifer Mitchell of the Child Advocacy Center, and sexual assault nurse examiner Andrea Sims also testified for the State.
By Count II of the indictment, Appellant is alleged to have committed aggravated sexual assault against E.S. by penetration or contact with her sexual organ by his mouth or tongue. E.S. testified that Appellant touched her “privacy” with his tongue. Sims also testified that during her interview with E.S., E.S. stated that Appellant “licked my privacy.” Further, B.S. testified that E.S. told her that Appellant pulled her pants down and licked her “middle part.” Sims testified that during her interview with B.S., B.S. stated that Appellant “took off [her] sister’s clothes” and “licked her thingy.” By Count III of the indictment, Appellant is alleged to have committed indecency with a child by causing E.S. to touch his genitals. E.S. testified that Appellant made E.S. put his “privacy” on her mouth. Likewise, B.S. testified that she saw Appellant make E.S. “lick his privacy” by “pushing her head down.”
By Count IV of the indictment, Appellant is alleged to have committed indecency with a child by touching E.S.’s genitals. E.S. testified that Appellant made her sit on his “middle part.” B.H. also testified that Appellant made E.S. sit on his “private.” B.H. elaborated saying that Appellant “made my little sister sit on his big bird, then . . . started humping.” Likewise, B.S. stated that she saw E.S. sit on Appellant’s “privacy,” that Appellant had his hand on her waist, and “made her go up and down.” Moreover, Sims testified that E.S. told her that Appellant “put his private part into my private part” and “was trying to have sex with me.”
By Count V of the indictment, Appellant is alleged to have committed indecency with a child by exposing his genitals to E.S. E.S. testified that she saw Appellant’s “privacy” and saw “white stuff” come out of Appellant’s “privacy.” B.S. stated that she saw something “gooey” come out of Appellant’s “privacy” while E.S. was sitting on it. B.H. testified that he saw Appellant’s “big bird,” and that he saw something come out of it, which “went on [his] little sister’s hand.”
By Count VII of the indictment, Appellant is alleged to have committed indecency with a child by exposing his genitals to B.S. B.S. testified that she saw Appellant’s “privacy” when he was in the bathroom. Moreover, as set forth previously, B.S. testified that she saw Appellant make E.S. “lick his privacy.” Furthermore, B.S. stated that she saw E.S. sit on Appellant’s “privacy,” that Appellant had his hand on her waist, and that Appellant “made her go up and down.” B.S. also stated that she saw something “gooey” come out of Appellant’s “privacy” while E.S. was sitting on it. B.S. further described the appearance of Appellant’s sexual organ as “big and hairy” and was able to draw a picture of it.
By Count XII of the indictment, Appellant is alleged to have committed indecency with a child by touching B.M.’s genitals. B.M. testified that she fell asleep while she and her sister were watching a movie. At that time, Appellant was lying at the foot of the bed. B.M. testified that as she slept, Appellant got on top of her and “put his private part into her private part.” B.M. further testified that when she awoke, Appellant asked her if he had hurt her. B.M. stated that she also noticed that her panties had been moved from how they were when she had fallen asleep as the waist band was turned down when she awoke. B.M. further stated that her “private spot” hurt when she went to the bathroom. Reid testified that B.M. told her that Appellant had touched her in her “crotch area” over her clothes.
By Count XIII, Appellant is alleged to have failed to register as a sex offender. Palestine Police Department Sergeant Larry Bowyer testified that he is the sex offender registration commander and reviewed Appellant’s file in June 2004. Bowyer further testified that upon review of Appellant’s file, he determined that Appellant was not in compliance with his registration requirements because the file did not indicate that Appellant had registered within thirty days of his January 24, 2002 birthday.
Following the State’s presentation of its case, Appellant rested without calling any witnesses. Ultimately, the trial court found Appellant guilty of the aforementioned counts and sentenced him as follows:
• Imprisonment for life for Count II, aggravated sexual assault of a child.
• Imprisonment for twenty years for Count III, indecency with a child.
• Imprisonment for twenty-five years for Count IV, indecency with a child.
• Imprisonment for twenty years for Count V, indecency with a child.
• Imprisonment for twenty years for Count VII, indecency with a child.
• Imprisonment for twenty-five years for Count XII, indecency with a child.
• Imprisonment for ten years for Count XIII, failure to register as a sex offender.
This appeal followed.
Factual Sufficiency
In his first issue, Appellant argues that the evidence is factually insufficient to support the trial court’s judgment. In conducting a factual sufficiency review, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the fact finder that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of “in the light most favorable to the prosecution.” See Clewis, 922 S.W.2d at 129.
The evidence may also be factually insufficient if the evidence in support of the existence of a vital fact, standing alone, is factually too weak to support it. See Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In conducting our factual sufficiency analysis, we review the fact finder’s weighing of the evidence and are authorized to disagree with the fact finder's determination. See Clewis 922 S.W.2d at 133. However, we are not free to reweigh the evidence and set aside a verdict merely because we believe that a different result is more reasonable. Id. Rather, we must employ appropriate deference to the fact finder’s role as the sole judge of the weight and credibility of witness testimony, see Johnson, 23 S.W.3d at 7. Where there is conflicting evidence, the fact finder’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d at 11.
Assuming as we must that the evidence is legally sufficient to support the jury’s verdict, we have reviewed the record in its entirety. As Appellant argues, the testimony of the child witnesses is not entirely free from conflict. Yet we iterate that our evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the fact finder’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96.
Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s first issue is overruled.
Outcry Testimony
In his second issue, Appellant argues that the trial court erred in admitting the outcry testimony from Reed because she was not listed by the State as an outcry witness. Appellant further argues that the video testimony, which showed the interviews conducted by Mitchell at the Child Advocacy Center, “exceeded the limitations of constitutional adherence to the Sixth Amendment of the U.S. Constitution and resulted in a dire violation of due process” and were not admitted under a legal exception as outcry testimony.
A trial court has broad discretion in determining the admissibility of outcry witness testimony. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). The exercise of such discretion will not be disturbed unless a clear abuse of discretion is established by the record. Id. A trial court’s findings will be upheld when they are supported by the evidence. Id.
Outcry testimony is admissible in spite of the hearsay rule with respect to statements that describe the alleged offense where such statements (1) were made by the child against whom the offense was allegedly committed and (2) were made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072 § 2(a), (b) (Vernon 2005). To “describe the alleged offense,” the statute demands that the statement must be “more than words which give a general allusion that something in the area of child abuse was going on[,]” but rather, must describe the offense “in some discernible manner[.]” Garcia, 792 S.W.2d at 91.
Admissible outcry witness testimony is not person specific, but event specific. See Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref’d). However, before more than one outcry witness may testify, it must be determined that the outcry concerned different events, and not simply a repetition of the same event as related by the victim to different individuals. Id.
In the instant case, the State argues that Appellant’s arguments on appeal do not comport with his objection at trial. In order for an issue to be preserved on appeal, there must be a timely objection that specifically states the legal basis for the objection. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977); see also Tex. R. App. P. 33.1. An objection stating one legal basis may not be used to support a different legal theory on appeal. Id.
With regard to Reed’s testimony, Appellant’s objection to the trial court was that he believed “that the proper outcry would be . . . the mother” as opposed to Reed, because the first outcry was to the victims’ mother. Since Appellant’s objection at trial is different from his argument on appeal that Reed’s testimony was improper because she was not listed as an outcry witness by the State, Appellant has waived such an argument on appeal.
With regard to Mitchell’s testimony and the video tape evidence of her interviews, Appellant’s objection to the trial court was that the video was inadmissible under Texas Rule of Criminal Procedure article 38.071, section 5(a)(4) because the State had not satisfied the requirement that the child’s statement not be made in response to questioning calculated to lead the child to make a particular statement. See Tex. Code Crim. Proc. Ann. 38.071 § 5(a)(4) (Vernon 2005). Again, Appellant’s objection at trial is different from his argument on appeal. On appeal, Appellant argues that the video tape evidence of Mitchell’s interviews was improper because it “exceeded the limitations of constitutional adherence to the Sixth Amendment of the U.S. Constitution and resulted in a dire violation of due process” and was not admitted under a legal exception as outcry testimony. Therefore, Appellant has waived his argument on appeal. Appellant’s second issue is overruled.
Ineffective Assistance of Counsel
In his third issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his trial counsel was ineffective in that he (1) failed to object when the two child witnesses were allowed to provide testimony outside the presence of Appellant without Appellant’s consent; (2) failed to object to the State’s numerous leading questions asked of these witnesses; (3) failed to effectively challenge the witnesses’ testimony on cross examination; and (4) failed to properly relate the proceedings that were being conducted to Appellant to apprise him of the testimony given or to allow him the opportunity to provide meaningful input into this critical process.
The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two step analysis:
1. Did the attorney’s performance fail to constitute “reasonably effective assistance,” i.e., did the defense attorney’s representation fall below an objective standard of reasonableness under prevailing professional norms?
2. If so, was there a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings could have been different?
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a noncapital case as well. See Hernandez, 988 S.W.2d at 772.
A “reasonable probability” was defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.” Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.
After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. Id.
In the case at hand, Appellant argues at length that his trial counsel’s actions fell below the professional norm. However, even assuming arguendo that the actions of Appellant’s trial counsel, as noted in Appellant’s brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186.
Despite repeated readings of Appellant’s brief, we can uncover no argument addressing the second prong of the Strickland test. Rather, Appellant makes only a passing reference to the issue, stating,
.... The severance of the Appellant from the trial process presents sufficient evidence in regard to the conduct of the trial counsel, and which [sic] deprived the Appellant from appropriate participation in the trial. This in and of itself, supports the issue presented herein that the Appellant did not receive effective assistance of counsel and by such conduct involving critical witnesses, the outcome of the trial should be rendered invalid.
We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant’s behalf that but for his counsel’s alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. We hold that Appellant has failed to meet his burden under Strickland. Appellant’s third issue is overruled.
Consecutive Sentence
In his fourth issue, Appellant argues that the trial court abused its discretion in ordering that Appellant’s twenty-five year sentence for his conviction for indecency with a child under Count IV of the indictment be served consecutively to his sentences for his other convictions. Specifically, Appellant argues that the trial court’s order is improper because the acts involved in his other convictions arose out of the same criminal episode as the acts alleged in Count IV.
We review a trial court's cumulation order under an abuse of discretion standard. Harvey v. State, 821 S.W.2d 389, 392 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court's conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion. Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d) (citing DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996)). As a practical matter, however, an abuse of discretion generally will be found only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing. Nicholas, 56 S.W.3d at 765. So long as the law authorizes the imposition of cumulative sentences, a trial judge has absolute discretion to stack sentences. Id.
Trial courts have the discretion to order cumulative sentences in virtually every case. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006). The principal exception to this rule is found in Texas Penal Code, section 3.03(a), which provides that when a defendant is found guilty at a single trial of more than one offense arising out of the same criminal transaction, the sentences for each offense must run concurrently. See Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2006). Section 3.03(b)(2)(A) creates an exception to this exception; that is, it exempts certain offenses, including indecency with a child and aggravated sexual assault of a child, from the application of section 3.03(a) regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one of the enumerated sections. See Tex. Penal Code Ann. § 3.03(b)(2)(A); Millslagle v. State, 150 S.W.3d 781, 784–85 (Tex. App.–Austin 2004, pet. dism’d, untimely filed). In the case at hand, because of the nature of the offenses for which Appellant was convicted, the trial court was authorized to cumulate the sentence for indecency of a child under Count IV regardless of whether that offense arose out of the same criminal episode. See Millslagle, 150 S.W.3d at 784–85.
Appellant cites Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004) in support of his argument that a conviction should be barred as to an offense that is demonstrably part of the commission of the greater offense. See id. at 92.3 In Patterson, the defendant was charged with both sexual assault by penetrating the victim’s anus and indecency with a child by contacting the victim’s anus. Id. at 90. In the case at hand, by Count II of the indictment, Appellant is alleged to have committed aggravated sexual assault against E.S. by penetration or contact with her sexual organ by his mouth or tongue. By Count III of the indictment, Appellant is alleged to have committed indecency with a child by causing E.S. to touch his genitals. By Count IV of the indictment, Appellant is alleged to have committed indecency with a child by touching E.S.’s genitals. None of these offenses is a demonstrable part of or preparation for either of the other offenses committed against E.S. Therefore, the instant case is distinguishable from Patterson. Appellant’s fourth issue is overruled.
Disposition
Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered June 29, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 See Tex. Penal Code Ann. §§ 21.11, 22.021 (Vernon 2003 & Supp. 2006).
2 See Tex. Code Crim. Proc. Ann. § 62.051 (Vernon 2006).
3 Appellant’s reliance on Patterson is curious in the context of his argument that his sentence for his conviction under Count IV was improperly cumulated. We read the court’s analysis in Patterson as pertaining to double jeopardy, i.e., multiple punishments for the same conduct. See Patterson, 152 S.W.3d at 90. But regardless of the context in which it is presented, we will nonetheless consider the merits of Appellant’s argument.