Affirmed and Memorandum Opinion filed June 30, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00150-CR
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RICKY LOYD POEHLS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 36,899
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M E M O R A N D U M O P I N I O N
A jury convicted appellant Ricky Loyd Poehls of aggravated sexual assault and sentenced him to twenty-two years= confinement. Appellant claims in his first issue that the evidence is legally and factually insufficient to support his conviction. In his remaining issues, appellant argues the trial court abused its discretion by: (1) sustaining the State=s objection that defense counsel made an improper attack on the prosecutor, (2) overruling appellant=s objections to the State=s closing arguments during the punishment phase of trial, (3) responding to the jury=s questions during deliberations only with direct-examination testimony, and (4) overruling appellant=s motion for new trial. We affirm.
I. Factual Background
Appellant is a divorced father of three children, two boys and one girl. One evening in 2002, when his children were visiting his residence, appellant entered his daughter=s bedroom and, after undressing the two of them, got into bed with her. Appellant=s daughter, the complainant in this case, testified appellant then rubbed his penis against her vagina and after several minutes, he left the room. The following day, after the complainant told her mother what appellant had done to her, the complainant=s mother called police.
Appellant was arrested and charged with aggravated sexual assault. A jury convicted appellant and assessed punishment at twenty-two years= confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal ensued.
II. Issues on Appeal
Appellant brings seven issues on appeal, beginning with his claim the evidence is legally and factually insufficient to support his conviction. In his second, fourth, fifth and sixth issues, he alleges that, during closing arguments, the trial court erred by (1) allowing the State=s use of an anatomically correct doll to summarize the complainant=s testimony; (2) allowing the State to make an improper plea for law enforcement; (3) sustaining the State=s objection that defense counsel made an improper attack on the prosecutor; and (4) allowing the prosecutor to make an improper attack on defense counsel. Appellant=s third issue is a claim that the trial court abused its discretion when it answered a jury question regarding testimony of the complainant with only the State=s direct examination of the complainant. In his seventh issue, appellant argues the trial court improperly overruled his motion for new trial based on juror misconduct.
III. Discussion
A. Sufficiency of the evidence
1. Standards of review
In reviewing evidence for legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). During this process, we do not reevaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). We affirm the judgment if any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
When conducting a factual sufficiency review, we remove the prism of Athe light most favorable to the verdict@ and view the evidence neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt; or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). In our review of the evidence, we must be deferential to the jury=s findings and resist intruding on the jury=s role as the sole judge of witness credibility and the weight to be given evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Our standards of review remain the same whether the evidence involved is direct or circumstantial. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
2. Analysis
Appellant argues the evidence is insufficient because Athere is not enough evidence in this case to sustain sexual organ-to-organ contact, much less sexual organ-to-sexual organ contact.@ He further claims that his testimony and admissions are at most probative of indecency with a child, but do not prove sexual assault of a child. In support of his arguments, appellant cites several cases dealing with an appellant=s penetration of the victim=s sexual organ.[1] In response, the State argues that reliance on penetration cases is improper, because the statute forbids contact as well as penetration. We agree with the State; the plain words of the statute defeat appellant=s argument.
The indictment in this case charged appellant with aggravated sexual assault of a child, namely his twelve-year-old daughter. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iii) (Vernon 2004). A person commits an offense under section 22.021 if he intentionally or knowingly Acauses the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor,@ and the victim is younger than fourteen years of age. Id. ' 22.021(a)(1)(B)(iii) & (a)(2)(B) (emphasis added). A Achild,@ for purposes of section 22.021, is any person under seventeen years of age who is not the actor=s spouse. Id. ' 22.011(c)(1). The uncorroborated testimony of a child-victim is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.CDallas 1998, pet ref=d). Further, a victim=s outcry statement is also probative. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The complainant testified that one evening, after she was in bed, appellant came into her room, got into bed with her, disrobed her and himself, got on top of her, and Arubbed@ his Aprivate@ against her Aprivate.@ She defined her Aprivate@ as the body part from which she urinates, and identified her father=s Aprivate@ using the same terminology. She also stated that appellant=s sexual organ actually touched her sexual organ, and repeated this testimony during cross examination. In addition, she testified appellant had engaged in this conduct several times prior to the incident in question. The complainant=s mother testified that when her daughter first described what appellant had done, the description matched the testimony the complainant gave in court.
Appellant=s signed confession was admitted into evidence without objection. In the confession, appellant stated he went into the complainant=s room to determine whether she had a rash. He also stated that after he disrobed her and himself and the two were in bed together, he masturbated while he was on top of her. Further, he stated he did not know when, if at all, his penis touched her vagina.
Viewing the evidence in the light most favorable to the verdict, we conclude there is legally sufficient evidence to establish the elements of aggravated sexual assault beyond a reasonable doubt. See King, 29 S.W.3d at 562; Empty, 972 S.W.2d at 196. Further, when viewing the evidence neutrally, we are not convinced the evidence supporting the verdict is too weak to support the jury=s finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d at 484B85. Although appellant=s confession may have conflicted with the testimony of the complainant, it is the sole province of the jury to reconcile any conflicts in the evidence. Herrero v. State, 124 S.W.3d 827, 832 (Tex. App.CHouston [14th Dist.] 2003, no pet.). The jury was free to believe entirely the testimony of the complainant and disregard appellant=s confession. Sharp, 707 S.W.2d at 614. Accordingly, appellant=s first issue is overruled.
B. Appellant=s Abuse of Discretion Complaints
1. The State=s use of a doll to summarize the complainant=s testimony
In his second issue, appellant claims the trial court abused its discretion by overruling his objection to the State=s use of an anatomically correct doll during closing arguments to illustrate the complainant=s testimony concerning where appellant had touched her. Appellant cites no authority in support of this argument, stating only that A[n]o case on point was found at the time of this filing.@ In response, the State argues the use of the doll was proper because an attorney may use visual aids to summarize evidence.
Our Rules of Appellate Procedure require that briefs Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Tex. R. App. P. 38.1(h). Appellant cites briefly to the record, showing the use of the doll and his objection, but he provides no authority in support of his contention, nor does he apply the facts of the case to any rule of evidence. We therefore conclude appellant has waived this issue. See Tex. R. App. P. 38.1(h); Jensen v. State, 66 S.W.3d 528, 535 n.3 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (noting that conclusory arguments citing no authority present nothing for review). Appellant=s second issue is overruled.
2. Trial court=s decision to answer jury questions solely with direct-examination testimony
Appellant=s third issue is a challenge to the trial court=s answers to the jury=s written questions submitted during their deliberations. In two of six notes to the trial judge, the jury requested the complainant=s testimony elicited from defense counsel regarding where and in what manner appellant had touched her. In both instances, the trial court responded that the jury=s questions were not specific enough to guide the court in providing a response. Defense counsel objected to the court=s responses, complaining that the questions were in fact specific enough to warrant the submission of cross-examination testimony in response. As appellant=s argument on appeal is inartfully drafted, we perceive it to be a complaint that the answers to certain jury questions contained only direct examination by the State and excluded defense cross-examination testimony. This discrepancy, appellant claims, amounts to a comment by the trial court on the weight of the evidence and constitutes an abuse of discretion. Appellant cites to no authority for this proposition, nor does he specify which of the eight jury questions his argument addresses.
To preserve a complaint for appellate review, an objection at trial must comport with the complaint raised on appeal. Tex. R. App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998). When this requirement is not met, nothing is preserved for our review. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). As noted, defense counsel objected to the trial court=s requirement that the jury ask more specifically for the testimony it requested. We conclude this trial objection does not adequately comport with appellant=s complaint on appealCthat cross-examination testimony was improperly excluded from the answers to the jury=s questionsCand we hold the complaint was not properly preserved for our review. See Tex. R. App. P. 33.1(a). Appellant=s third issue is overruled.
3. Improper plea for law enforcement during the State=s closing argument
In his fourth issue, appellant complains the trial court abused its discretion by allowing the State to make an improper plea for law enforcement during closing arguments. The State argues in response that the statements were proper and the trial court therefore correctly overruled defense counsel=s objections.
At closing arguments during the punishment phase, the prosecutor stated the jury=s duty is Ato punish [appellant] for what he=s done. It is also to fill in the newspaper with what happens to somebody who=s 43 years old . . . .@ Defense counsel objected to the statement regarding the newspaper as an improper plea for law enforcement, and the objection was overruled. The prosecutor continued, urging the jury to A[f]ill in tomorrow=s headlines.@ Appellant lodged the same objection, and the trial court again overruled it. On appeal, appellant argues that Aallowing the State to try to get the jury to do something to get into the newspaper is an appeal to community sentiment,@ and A[s]ince newspaper headlines are a matter of popularity they are de facto an appeal to community sentiment.@ Appellant cites no authority supporting these arguments, stating only that A[s]urprisingly, no case exactly on point was found by [a]ppellant at the time of this filing.@
Jury argument is proper if it falls into one of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to arguments of opposing counsel; or (4) pleas for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990) (per curiam). To determine whether an argument falls within one of these categories, we must consider it in light of the entire record. Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d). Pleas for law enforcement are permitted so long as they do not propose the jury reach a particular verdict based on the demands, desires, or expectations of the community. See Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984); Harris v. State, 122 S.W.3d 871, 888 (Tex. App.CFort Worth 2003, pet. ref=d). For example, the State may properly argue the relationship between the jury=s verdict and crime deterrence, as well as the impact of the jury=s verdict on the community. Borjan, 787 S.W.2d at 55B56.
We conclude that the prosecutor=s comments are a proper plea for law enforcement. A prosecutor asking the jury to Afill in the headlines@ is not materially different than urging the jury to Arepresent the community@ or to Asend a message.@ The prosecutor may properly advocate the jury=s role as the voice of the community so long as he does not ask the jury to Alend its ear to the community.@ Harris, 122 S.W.2d at 888. Accordingly, we overrule appellant=s fourth issue.
4. Objection to statement that the prosecutor was Atrophy hunting@
Appellant complains in his fifth issue that the trial court erred in sustaining the State=s objection to improper jury argument during appellant=s closing statement. During closing argument, appellant=s counsel stated that A[i]t looks like somebody=s trophy hunting here to me,@ possibly inferring that the State sought a larger sentence than was warranted by the evidence. As with his second issue, appellant makes only conclusory statements and provides no authority supporting his claim of abuse of discretion. We therefore overrule this issue due to inadequate briefing. See Tex. R. App. P. 38.1(h); Jensen, 66 S.W.3d 528, 535 n.3.
5. Prosecutor=s response to defense counsel=s argument for assessing a punishment of probation
In his sixth issue, appellant argues the trial court abused its discretion in overruling his objection to the prosecutor=s use of the word Atrickery@ because it amounts to an uninvited and unsubstantiated accusation unsupported by evidence. The State claims in its response that the trial court did not abuse its discretion because the word Atrickery@ was used in response to appellant=s argument.
During his closing argument at the punishment phase, defense counsel argued: AYou heard the conditions that are possible, and you can use your mind, I think, and reasonably, with your common sense, come to the conclusion that [appellant] is going to do 180 days in jail.@ During the State=s closing statement, the prosecutor referenced defense counsel=s assertions, stating it is A[a]nother bit of trickery, to think that this [appellant] is going to get 180 days in jail if you give him probation.@ Defense counsel objected, claiming the word trickery was a Astrik[e] at the [appellant] because of his legal representation.@ The trial court overruled the objection.
As previously noted, response to arguments of opposing counsel is a proper subject of jury argument. Borjan, 787 S.W.2d at 55. But, the State may not Astrike at the defendant over the shoulders of his counsel,@ or make accusations of defense counsel=s bad faith or dishonesty during argument. Harris, 122 S.W.3d at 886. This protection, however, is limited to situations in which the purpose of the comments is to inflame the minds of the jury rather than to reply to defense counsel=s arguments. Stokes v. State, 506 S.W.2d 860, 864 (Tex. Crim. App. 1974). A comment that may appear aimed at defense counsel, but actually responds to counsel=s argument, may be proper because responses are permitted when the defense invites argument. Swarb, 125 S.W.3d at 686.
Viewing both statements in the context of the arguments, the prosecutor=s remark was in response to defense counsel=s inference that a sentence of probation would net appellant no more than 180 days of incarceration. Consequently, the trial court did not abuse its discretion, as the prosecutor=s statement was within an invited argument. See Swarb, 125 S.W.3d at 686 (finding prosecutor=s statement A[w]hen [defense attorneys] can=t convince you, they try to confuse you@ was proper invited argument). Appellant=s sixth issue is therefore overruled.
6. Trial court=s denial of motion for new trial
In his final issue, appellant claims the trial court erred in overruling his motion for new trial based on juror misconduct. In support of his motion, appellant attached an affidavit submitted by appellant=s current wife, Rita Young, that claimed she observed two female jurors speaking in the courthouse hallway to a Fort Bend County sheriff=s deputy who later testified at appellant=s trial. At the first of two hearings on the motion, only two of the six female jurors attended, and Young was unable to identify either of them as the jurors she saw speaking to the deputy. In a second hearing, Young successfully identified the two jurors, but only one testified. The juror testified that she did not remember having a conversation with a sheriff=s deputy, nor did she see anyone have such a conversation.
The Code of Criminal Procedure expressly forbids a juror from conversing with any person regarding the case on trial outside the presence of, or without the permission of, the court. Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). Should a prohibited conversation about the case occur, injury to the defendant is presumed, and a new trial may be warranted. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997). Appellant argues that a conversation was proved and, although the juror could not remember it, Ait does not affirmatively appear that the case was not discussed in the conversation or that nothing prejudicial to the accused was said.@ We find this argument unpersuasive, however, because it shifts the burden of proof.
A party asserting a claim of juror misconduct has the burden of proving it. Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). Although, as noted, harm is presumed if the case is discussed in an unauthorized conversation, appellant cites to no authority suggesting that the case is presumptively discussed when a juror converses with someone outside the courtroom. To the contrary, it was appellant=s burden to show not only that the conversation took place, but also that those involved actually discussed the case. See Stults v. State, 23 S.W.3d 198, 206B07 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Because the juror denied having a conversation with a sheriff=s deputy, appellant failed not only to show the conversation ever took place, but that the case was actually discussed. Although Young=s affidavit may be some evidence of the conversation, we find no abuse of discretion where a motion for new trial is overruled in the face of conflicting evidence. See Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984). Accordingly, we overrule appellant=s seventh issue.
For the foregoing reasons, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed June 30, 2005.
Panel consists of Justices Edelman, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The cited cases are: Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992); Clay v. State, 518 S.W.2d 550 (Tex. Crim. App. 1975); and Lynch v. State, 199 S.W.2d 780 (Tex. Crim. App. 1947).