Affirmed and Memorandum Opinion filed June 16, 2009.
In The
Fourteenth Court of Appeals
NO. 14-08-00629-CR
____________
JABAR SMITH YOUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court
Angelina County, Texas
Trial Court Cause No. CR-26,823
M E M O R A N D U M O P I N I O N
Appellant, Jabar Smith Young, was charged with two counts of aggravated sexual assault and three counts of indecency by contact involving three young girls: Jane Doe 1, Jane Doe 2, and Jane Doe 3. Tex. Penal Code Ann. '' 21.11, 22.021 (Vernon 2003). The jury found appellant guilty of each count and sentenced him to ninety-nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice for each aggravated sexual assault conviction and twenty years= confinement for each indecency with a child conviction. The jury also imposed $10,000 fines for each conviction. Appellant now challenges the convictions on appeal. We affirm.
Factual and Procedural Background
Jane Does 1 and 3 are twin sisters. Jane Doe 2 is a half-sister. Jane Does 1 and 3 were nine years old when the sexual abuse occurred. Jane Doe 2, who is a few months younger than the twins, was eight. At all times relevant to this appeal, Jane Does 1 and 3 lived with their grandparents, Doris and James Fears. A sister, Decoya Amie, (frequently referred to as Dee) also lived with the Fears. During the relevant time period, Dee was a student in high school. Jane Doe 2 lived out of town, but would visit and stay overnight on weekends and would stay for longer periods during summer vacation. The Fears lived in a three bedroom house: the twins in one bedroom, Dee in a second, adjoining bedroom, and Mr. and Mrs. Fears in the third.
Appellant is Mrs. Fears= nephew. Appellant was twenty-three at the time of trial. About three years before the April 2008 trial Mr. Fears had knee surgery. Mrs. Fears asked appellant, who had recently moved back to Lufkin from Dallas, to come and help take care of Mr. Fears while she took a trip. Appellant continued to reside in the Fears= house once Mr. Fears had recovered from the knee surgery.
In July 2006, Jan Wilkerson, a registered nurse, was making a series of presentations at the Pine Woods Park Apartments. Mr. Fears was the maintenance man at the complex and he sometimes brought Jane Does 1 and 3 to work with him. The twins attended Ms. Wilkerson=s presentation on good touch/bad touch. During the presentation, Jane Doe 1 told Ms. Wilkerson: AI=ve been touched like that.@ This outcry led to a police investigation that ultimately resulted in appellant being indicted on five counts. In count one appellant was charged with aggravated sexual assault of Jane Doe 1 by causing the sexual organ or anus of Jane Doe 1 to contact appellant=s sexual organ. Tex. Penal Code Ann. ' 22.021(a)(1)(B)(iii) & (iv). In the second count, appellant was charged with aggravated sexual assault of Jane Doe 2 by causing Jane Doe 2's anus to contact appellant=s sexual organ. Id. at ' 22.021(a)(1)(B)(iv). In count three, appellant was charged with intentionally or knowingly engaging in sexual contact with Jane Doe 1 by touching her breast. Id. at ' 21.11(a)(1). In count four, appellant was charged with intentionally or knowingly engaging in sexual contact with Jane Doe 2 by touching her breast. Id. Finally, in count five, appellant was charged with intentionally or knowingly engaging in sexual contact with Jane Doe 3 by touching her breast, sexual organ, or anus. Id.
I. The Evidence Introduced During the Guilt-Innocence Phase of the Trial
Appellant=s trial commenced on April 16, 2008. The testimony is summarized below.
A. The State=s Case
1. Jan Wilkerson
The State=s first of numerous witnesses was Jan Wilkerson, the designated outcry witness pursuant to article 38.072, Texas Code of Criminal Procedure. Wilkerson testified she is a registered nurse and in July 2006 she was doing a series of presentations at the Pine Woods Park Apartments. While doing the good touch/bad touch talk, one of the participants, Jane Doe 1, tapped Wilkerson on her arm and said AI=ve been touched like that before.@
At the end of the presentation Wilkerson took Jane Doe 1 into Ms. Peabody=s (a director at the apartments) office. She then talked to Jane Doe 1 along with Ms. Peabody. After a few minutes, Jane Doe 1 revealed that her cousin, Jabar Young, had touched her several times and fondled her breasts at least three times. Jane Doe 1 was unable to remember dates. Jane Doe 1 also revealed appellant had touched her twin sister as well as another sister. Jane Doe 1 was very frightened while talking and kept saying she would get in trouble.
Wilkerson then took Jane Doe 1 out of the room, brought in and then talked to her twin sister, Jane Doe 3. After a few minutes, Jane Doe 3 revealed appellant had touched her.
Neither Jane Doe 1 or 3 could specify any dates the incidents occurred. Wilkerson testified this is not uncommon for children the age of Jane Does 1 and 3. Wilkerson also testified being frightened while recounting the incidents is not uncommon. Finally, Wilkerson testified she then reported the incident to the police and did not deal with the girls again.
2. Stacey Hamilton
Stacey Hamilton is a registered nurse at Woodland Heights Medical Center. She is one of the SANE (Sexual Assault Nurse Examiner) nurses at the hospital.
On August 2, 2006, Hamilton examined Jane Doe 2, who was nine at the time. Jane Doe 2 told Hamilton she would visit and stay at her grandmother=s house on weekends. When Jane Doe 2's grandmother left the house, she would have AJoeboy@ watch them. At this point, Hamilton testified Jane Doe 2 became tearful and very afraid. Jane Doe 2 told Hamilton AJoeboy@ would lay on her and put something in her anus. He never threatened her, but told her sisters if they told he would kill them. Jane Doe 2 identified AJoeboy@ as appellant. Jane Doe 2 was not able to pinpoint any dates. According to Hamilton, Jane Doe 2 said the abuse had been going on since last year, had happened about five times, maybe more, and usually occurred during the night.
Following her interview of Jane Doe 2, Hamilton performed a physical examination. Hamilton testified that, because of Jane Doe 2=s age, she only performed a visual inspection of Jane Doe 2=s genitalia, which revealed a normal vaginal area. When tested, Jane Doe 2=s rectum dilated quickly which, according to Hamilton, raises questions as to why and is some indication there has been sexual abuse. However, Hamilton testified rapid rectal dilation is not definitive evidence there has been sexual abuse. Hamilton also testified injuries caused by sexual assault heal very quickly, often within twenty-four hours, thus Jane Doe 2's normal vaginal result does not mean Jane Doe 2 had not been sexually abused.
The next day Hamilton examined Jane Does 1 and 3. They were nine at the time of the examination.
Hamilton first interviewed and examined Jane Doe 1. According to Hamilton, Jane Doe 1 described multiple assaults by appellant, including insertion into the vagina and anus. Jane Doe 1 said the assaults happened at least ten times. The physical exam showed Amultiple notches in her hyman@ and obvious scarring. According to Ms. Hamilton, these were not normal findings and were consistent with Jane Doe 1's sexual assault history. Hamilton took photographs of Jane Doe 1's genitalia showing the notches and scarring and these photographs were admitted into evidence.
Next, Hamilton interviewed and examined Jane Doe 3. During the interview, Jane Doe 3 described multiple incidents of abuse by appellant, including penetration of the vagina and anus. The physical exam showed physical signs consistent with sexual assault. As part of her physical exam of Jane Doe 3, Hamilton took photographs of Jane Doe 3's genitalia and these were admitted into evidence.
On cross-examination Hamilton testified she could not put a time frame on when the injuries occurred. Also, Hamilton testified she could not say 100% positively that this was caused by the sexual abuse of appellant. According to Hamilton, neither twin mentioned a threat to kill by appellant.
3. David ABuddy@ Cross
David Cross is a detective with the Lufkin Police Department with over 350 hours of advanced training in child physical and sexual abuse. Detective Cross was one of the police investigators assigned to this case.
Detective Cross testified that, during one of the victim interviews at the Child Advocacy Center, the child mentioned the actor had ejaculated on a particular comforter in Dee=s bedroom. The police then recovered a purple comforter from Dee=s bedroom. Detective Cross obtained DNA samples from the three complainants and appellant. Detective Cross turned the evidence over to the officer in charge of the Lufkin Police property room and she forwarded the comforter and DNA samples to the Department of Public Safety (ADPS@) crime lab in Houston, Texas.
Finally, Detective Cross testified that, as part of his investigation, he met with appellant, who appeared voluntarily. According to Detective Cross, appellant denied the accusations.
4. Tanya Dean
Tanya Dean testified she is a forensic scientist assigned to the DPS crime lab in Houston. Dean received the comforter from the Lufkin Police as well as the DNA swabs. Dean initially checked the comforter for stains and testified she observed a total of eighty-six stains. Dean then narrowed the eighty-six stains down to twelve possible semen stains. Dean confirmed semen on two, stains A and B. According to Dean, the remaining stains were apparent semen (i.e. unconfirmed). Dean then explained she narrowed the number down from the eighty-six by testing for acid phosphatase, which, according to Dean, is present in large quantity in semen. Dean testified that, because she was not certified in DNA testing at that point in time, she could not perform the DNA testing on the comforter stains or the DNA samples.
5. Christy Smejkal
Christy Smejkal testified next. Smejkal testified she is a forensic scientist with the DPS crime lab in Houston. Smejkal extracted DNA from three comforter cuttings: A, B, and C. Smejkal then testified she found sperm and epithelial (skin) cells on all three. Smejkal then testified that, in her opinion, the DNA profile from the sperm found on all three stains is consistent with that of appellant. She therefore concluded appellant was the sperm contributor.
Smejkal then testified she examined the skin cells from the three stains. According to Smejkal, Stain A contained a mixture of DNA profiles and she could not exclude Jane Doe 1 or appellant as contributors. Smejkal=s examination of Stain B revealed a mixture of DNA profiles. According to Smejkal, she could not exclude any of the Jane Does as contributors, but she could make no conclusion beyond that. As far as Stain C, Smejkal testified it was a mixture of DNA as well. Smejkal testified appellant could not be excluded and she concluded appellant was a major contributor. However, Smejkal testified she excluded all three Jane Does as contributors to the skin cells found in Stain C.
Smejkal further testified that since the stains are semen stains, it is likely the skin cells came from a sexual encounter rather than as a result of a random mixing (i.e. the skin cells were already on the comforter, and sperm then landed on top of the skin cells).
On cross-examination Smejkal testified that, as a result of the DNA from the skin cells, she could not positively conclude any of the Jane Does were contributors to the skin cells found in Stains B and C. As far as Stain A, Smejkal testified she could not exclude Jane Doe 1 as a contributor to the skin cells, but there were also cells from others, more than two contributors. According to Smejkal, the normal method skin cells get in a semen stain is the liquid gathers the skin cells and then transports the skin cells onto the surface. Smejkal could not confirm how Jane Doe 1's skin cells got in Stain A, but it is a semen stain.
Finally, Smejkal testified the remaining nine out of the twelve semen stains remain in freezer storage at the DPS lab. Smejkal testified she elected not to test the nine remaining samples. According to Smejkal, it is the analyst=s discretion or decision on how many samples to test.
6. Jane Doe 2
Jane Doe 2 was ten at the time she testified. Jane Doe 2 lives with her mother. Appellant is her cousin. She has twin sisters, who live with their grandmother. Jane Doe 2 testified appellant would Amess with her@ when she was staying at her grandmother=s place. According to Jane Doe 2, appellant did it three or four times. Jane Doe 2 then described the incidents: appellant would pull his pants down and then pull down Jane Doe 2's pants. Appellant would put lotion on her bottom and would get on top of her while she was lying on her stomach. According to Jane Doe 2, these incidents happened in the twins= bedroom as well as in Dee=s. Jane Doe 2 testified Dee had a purple comforter on her bed and the incidents sometimes occurred on top of that comforter. Jane Doe 2 also testified she saw appellant leave a stain on the comforter when he was on top of Jane Doe 3. Jane Doe 2 testified she saw appellant do bad things to Jane Doe 3 twice. Jane Doe 2 testified she did not remember the exact dates of any of the incidents.
On cross-examination Jane Doe 2 testified appellant slept in Dee=s room if she was not there, otherwise, he slept on the couch in the living room. She also testified that most of the incidents happened at night, but a couple occurred during the day. During the daytime incidents, only appellant and the Jane Does were home. At night, Jane Doe 2's grandparents were there in the house. According to Jane Doe 2, Jane Doe 1 has to use lotion on a daily basis for skin problems. Jane Doe 2 saw appellant get Jane Doe 3 when Jane Doe 3 was drying off after a bath and appellant then took Jane Doe 3 into Dee=s room.
7. Jane Doe 1
Jane Doe 1 was eleven at the time of trial. Jane Doe 1 testified appellant is her cousin and was living with her grandparents at the time of the incidents. Dee was also still living at home at the time of the incidents. Jane Doe 1 testified she told the nurse at the Pine Woods Park Apartments about what happened. According to Jane Doe 1, appellant touched her on her breast and her bottom with his hand. Appellant also touched Jane Doe 1's bottom with his private part (Jane Doe 1 indicated this by circling an area on a drawing of a male which was admitted into evidence). Jane Doe 1 referred to her genital area as her private part. Jane Doe 1 could not remember if appellant had touched her private part with his private part.
According to Jane Doe 1, when Dee was home, appellant would stay in the twins= room and sleep at the end of the bed. The incidents occurred in both the twins= room as well as in Dee=s room. Jane Doe 1 saw white stuff come out of the appellant=s private part, and she saw it a lot.
Jane Doe 1 also testified appellant never threatened her, but that he did tell her they would get in trouble if the girls told anyone. She did not remember the dates the incidents occurred, but they happened a lot.
Finally, Jane Doe 1 testified she saw appellant touch both Jane Doe 2 and Jane Doe 3 on their bottoms with his private part. She also saw appellant touch Jane Doe 3's breasts but she was not sure if appellant touched Jane Doe 3's private part with his private part.
On cross-examination Jane Doe 1 stated that while most of the incidents occurred at night, some occurred during the daytime. According to Jane Doe 1, appellant used lotion during the incidents and she confirmed she has to put lotion on her skin. Finally, she testified that while appellant did not stay at her grandparents= house every night, he was there most nights.
8. Jane Doe 3
Jane Doe 3 was eleven when she testified. Jane Doe 3 testified appellant touched her in a bad way. Jane Doe 3 testified appellant stayed in the twins= bedroom at the end of the twins= bed.
Jane Doe 3 testified she woke up one night and saw appellant=s front touching Jane Doe 2. She also saw appellant use his hand to touch Jane Doe 2's private part as well as her breasts. According to Jane Doe 3, this happened more than once, and always at night.
Jane Doe 3 testified appellant touched her private part with his private part. According to Jane Doe 3, this happened more than once and it occurred in the twins= bedroom as well as one time in Dee=s room. According to Jane Doe 3, this was the incident when appellant grabbed her when she got out of the bathtub. During the incidents, Jane Doe 3 would lie on her stomach and appellant would touch her bottom and private part with his private part. Appellant also touched her breasts with his hand and this happened multiple times.
Jane Doe 3 also testified she saw appellant touch Jane Doe 2's breast with his hand.
Finally, Jane Doe 3 testified appellant did not threaten her, and she did not hear appellant threaten Jane Does 1 or 2 either.
9. David ABuddy@ Cross
Detective Cross took the witness stand again and testified that, when he retrieved the purple comforter from Dee=s room, there were no fresh stains on it, just dry. The initial report of the incidents was made on July 26, 2006. In response to questions regarding how the indictment date of April 15, 2006 was selected, Cross testified that during the video interviews at the Child Advocacy Center, the victims said the assaults occurred two to three months prior to the interviews, on a weekend. Cross then calculated three months prior, on a Saturday, and this worked out to be April 15, 2006.
Following Detective Cross= testimony, the State rested its case in chief.
B. Appellant=s Evidence:
1. Doris Fears
Mrs. Fears explained why appellant was living at her house in the spring and summer of 2006. She also testified the twins had been living with them since they were six. According to Mrs. Fears, eventually, during 2006, the twins told her they wanted appellant to move out of the house. On cross-examination, Mrs. Fears testified that since the incidents were reported the girls have consistently maintained it was appellant who abused them. Fears also testified she believed the accusations were true.
2. Jabar Young
Appellant testified in his own defense. Appellant denied abusing the three girls. Appellant also explained that his sperm got on Dee=s purple comforter because he had sex with his girlfriend in Dee=s room when no one else was present in the Fears= home. Appellant denied that Jane Doe 2 stayed overnight while he was staying at the Fears= house. Appellant also denied he stayed most nights at the Fears= house. Instead, appellant testified he spent most evenings at his girlfriend=s place. Appellant testified that when he slept at the Fears= house, he slept on the couch, not in the twins= bedroom. Appellant also admitted he knew the twins told Mrs. Fears they were ready for him to move out. In appellant=s view, the twins were jealous because he got all of the attention from everybody.
On cross-examination, appellant had no idea how, if no one else was home when he had sex with his girlfriend, Jane Doe 2 could tell the police there would be semen on the purple comforter. Appellant argued he was the victim of a conspiracy by three nine year old girls to get him out of the house.
C. State=s Rebuttal
On rebuttal, Detective Cross testified that Jane Doe 2, during the interview at the Child Advocacy Center (which he observed through a closed circuit), revealed she had seen white stuff come out of appellant onto the purple comforter in Dee=s room. The only people in the interview room were Jane Doe 2 and the interviewer.
II. The Charge Conference and Jury Charge
At the close of the evidence appellant filed a motion asking the trial court to force the State to elect not only which specific conduct they were proceeding on under each count but to elect between night and day as well. The State voluntarily made an election as to the conduct on Counts I, IV, and V. With regard to Counts II and III, the State asserted no election was needed because there was only one allegation as to each sexual organ in Count II and breast in Count III. Appellant=s trial counsel agreed.[1] Following these voluntary elections, the State argued it was not required to make the requested election between day and night. The trial court agreed and denied appellant=s motion seeking that election. The trial court then prepared a jury charge on all five counts:
Count I: [O]n or about the 15th day of April, 2006, ... [appellant], did then and there intentionally or knowingly cause the sexual organ of Jane Doe 1 ... to contact the sexual organ of [appellant] ....
Count II: [O]n or about the 15th day of April, 2006, ... [appellant], did then and there intentionally or knowingly cause the sexual organ of Jane Doe 2 ... to contact the sexual organ of [appellant] ....
Count III: [O]n or about the 15th day of April, 2006, ... [appellant], ... with the intent to arouse or gratify the sexual desire of [appellant], intentionally or knowingly engage in sexual contact with Jane Doe 1, by touching the breast of Jane Doe 1 ....
Count IV: [O]n or about the 15th day of April, 2006, ... [appellant], ... with the intent to arouse or gratify the sexual desire of [appellant], intentionally or knowingly engage in sexual contact with Jane Doe 2 by touching the breast of Jane Doe 2 ....
Count V: [O]n or about the 15th day of April, 2006, ... [appellant], ... with the intent to arouse or gratify the sexual desire of [appellant], intentionally or knowingly engage in sexual contact with Jane Doe 3 by touching the breast of Jane Doe 3 ....
The jury charge also included the following instruction:
AYou are instructed that the State is not bound by the date alleged in the indictment but to prove that the offense was committed any time prior to the return of the indictment that is within the period of limitation.@
The jury found appellant guilty of each count and sentenced him to ninety-nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice for each aggravated sexual assault conviction and twenty years= confinement for each indecency with a child conviction. The jury also imposed a $10,000 fine for each count. This appeal followed.
Discussion
Appellant brings eight issues on appeal, which can be grouped into three general categories. Issues 1 through 4 challenge the legal and factual sufficiency of the evidence supporting the Counts I (aggravated sexual assault of Jane Doe 1) and IV (sexual contact with Jane Doe 2) convictions. Issues 5 through 7 argue the trial court erred in denying appellant=s motion for election (night or daytime) as to Counts II, III, and V. Finally, Issue 8 contends the trial court erred when it denied appellant=s motion for mistrial after the prosecutor argued outside the record during closing argument.
I. Is the evidence legally and factually sufficient?
A. The Standard of Review
In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness= testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Reconciliation of conflicts in the evidence is within the jury=s discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).
In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. The evidence supporting the Count I conviction is legally and factually sufficient
A person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the sexual organ of a child to contact or penetrate the sexual organ of another person and the child is younger than 14 years of age. Tex. Penal Code Ann. ' 22.021(a)(1)(B)(iii), (a)(2)(B).
With regard to Count I, in his brief appellant focused only on the testimony of Jane Doe 1 and the fact she testified during the trial that she could not remember if appellant=s private part had touched her private part. In making this argument, appellant overlooks the other evidence in the record, including the testimony of Stacey Hamilton, the SANE nurse who testified regarding (1) Jane Doe 1's description of appellant=s sexual organ contacting her sexual organ, and (2) the medical evidence indicating Jane Doe 1 had been sexually assaulted. Viewing this evidence in a light most favorable to the verdict, we conclude a rational jury could have found the elements of aggravated sexual assault of a child beyond a reasonable doubt. Accordingly, we hold the evidence supporting the conviction on Count I is legally sufficient. Jensen v. State, 66 S.W.3d 528, 533B34 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). As the evidence is legally sufficient to support appellant=s Count I conviction, we overrule appellant=s first issue on appeal.
With regard to the factual sufficiency of the evidence supporting Count I, appellant once again focuses exclusively on Jane Doe 1's testimony that she could not remember if appellant=s private part had touched her private part. In making this argument, appellant again overlooks the other evidence in the record highlighted above. The jury heard all of this evidence, considered the inconsistencies, if any, and still determined appellant was guilty of aggravated sexual assault of Jane Doe 1. Considering all of the evidence in the case in a neutral light, and deferring to the jury=s role as the sole judge of the weight and credibility given to the witnesses= testimony, we cannot conclude that the contrary evidence pointed out by appellant is strong enough that the beyond-a-reasonable-doubt standard could not have been met.
As the evidence is factually sufficient to support appellant=s Count I conviction, we overrule appellant=s third issue.
C. The evidence supporting the Count IV conviction is legally and factually sufficient
In his second and fourth issues, appellant argues the evidence is legally and factually insufficient to support the Count IV conviction because the only evidence was Jane Doe 3's testimony that she saw appellant touch Jane Doe 2's breast. We disagree.
A criminal conviction may be supported by the testimony of a single witness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Therefore, viewing the evidence in the light most favorable to the verdict, we hold the evidence supporting the Count IV conviction is legally sufficient. We overrule appellant=s second issue.
In his fourth issue, appellant asserts that since there was only one witness who testified she saw appellant touch Jane Doe 2's breast, the evidence supporting the Count IV conviction is so weak the verdict is clearly wrong and manifestly unjust. Here, the jury heard Jane Doe 3's testimony describing how appellant touched Jane Doe 2's breast and determined appellant was guilty of indecency with a child. Considering all of the evidence in the case in a neutral light, and deferring to the jury=s role as the sole judge of the weight and credibility given to the witnesses= testimony, we cannot conclude the evidence is so weak the verdict is clearly wrong and manifestly unjust. Therefore, we hold the evidence supporting the Count IV conviction is factually sufficient. We overrule appellant=s fourth issue.
II Was appellant harmed as a result of the trial court denying his motion to force the State to elect between night and daytime offenses?
In issues five through seven, appellant contends the trial court reversibly erred when it denied his motion for election between night and daytime offenses for Counts II, III, and V. Assuming without deciding appellant preserved these issues for appellate review, and the trial court erred when it denied appellant=s motion to elect, we hold the error was harmless.
The general rule is Awhere one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction.@ O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). Once the State rests its case in chief, in the face of a timely election request by the defendant, the trial court must order the State to make its election. Id. at 772. Failure to do so constitutes error. Id. There are four reasons for the election rule: (1) to protect the accused from the introduction of extraneous offenses, (2) to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty, (3) to ensure unanimous verdicts, that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred, and (4) to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. Dixon v. State, 201 S.W.3d 731, 733 (Tex. Crim. App. 2006). Election error is analyzed under the harm standard applicable to constitutional errors. Id. at 734.
In Dixon, a case with remarkably similar facts, the Court of Criminal Appeals addressed each of the four reasons for the election rule and held there was no harm when the trial court denied the defendant=s motion to force the State to elect the specific offense it was relying on for conviction. See id. at 734B36.
Citing Article 38.37 of the Code of Criminal Procedure, the Court of Criminal Appeals dispensed with the first purpose because a defendant is not entitled to be protected from the admission of evidence of extraneous sexual offenses committed by the defendant against the child. Id. at 734.
In addressing the second purpose, the court found the case was
not concerned with evidence of different activities from different sources that a jury might perceive to add up to the defendant being guilty even though no individual offense was proven beyond a reasonable doubt. Moreover, the child complainant did not testify about a number of varied incidents with differing details that might have incrementally added to the idea that the defendant must have done something to provoke the plethora of stories about his activities. Rather, the child articulated one sequence of events and merely answered that this sequence happened one hundred times, with all but one of those instances occurring at night. The child was either credible in giving this unified account or she was not.
Id. at 735.
The Court of Criminal Appeals also determined there was no risk that the case led to a non-unanimous verdict simply because the child complainant testified one incident occurred during the day while the remaining ninety-nine occurred at night. Id. The court continued, Ait is obvious from this record that anyone who believed the complainant=s allegations in any respect would believe that sexual assaults occurred at night.@ Id. Finally, the court concluded Aclearly, . . . the jurors unanimously agreed that appellant committed at least one sexual assault, at night, sometime during the year, in the manner described by the complainant.@ Id. n.23.
Finally, noting time of day is not usually an essential element of a criminal offense, the Court of Criminal Appeals held the defendant was not deprived of notice simply because the child complainant testified one out of the one hundred incidents occurred during the day. Id. at 736. The court warned, where young children are involved, courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred. Id. The court then held that, Awithout more, a variance in the time of day is not a basis for claiming lack of notice.@ Id.
Because we perceive no legally significant differences between the facts of the present case and Dixon, we hold, beyond a reasonable doubt, the trial court=s denial of appellant=s motion to force the State to elect between night and day offenses did not contribute to appellant=s conviction or punishment. See id. Therefore, we overrule appellant=s fifth, sixth, and seventh issues.
III. Did the trial court err when it denied appellant=s motion for mistrial after the prosecutor argued outside the record during closing argument?
In his final issue on appeal, appellant complains of the following argument by the prosecutor:
First of all, with respect to the DNA, I want to tell you, first of all, that the lab did come in and tell me the day they were here to testify, they had nine other samples. I was under the impression that they had only three and I didn=t find out about it until she got to my office and said there were nine others. In fact, we had the discussion about that, and said, AWell, how is anybody supposed to --@
At that point, appellant=s counsel objected as outside the record. The trial court sustained the objection: AI=ll sustain. Ladies and gentlemen, you=re only to consider what=s evidence presented under oath under my rulings or exhibits. You may continue.@ Appellant then requested a mistrial, which the trial court denied.
Appellant contends the trial court erred when it denied his motion for mistrial. The State points out appellant did not request an instruction to disregard and argues appellant waived this issue on appeal because the alleged error was of the type that could have been corrected by such an instruction. We agree with the State.
Improper jury arguments include references to facts not in evidence. Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.CHouston [14th Dist.]), aff=d, 193 S.W.3d 904 (Tex. Crim. App. 2006). Almost any improper argument may be cured by an instruction to disregard. Newby v. State, 252 S.W.3d 431, 438 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). Even when a prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error. Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000). A mistrial is the trial court=s remedy for improper conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile. Newby, 252 S.W.3d at 438. A party that fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been cured by such an instruction. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004).
Here, the prosecutor=s argument did mention a fact outside the record: the prosecutor=s knowledge of the number of semen samples taken from the purple comforter that were not tested for DNA and a discussion he allegedly had with the analyst.[2] However, appellant=s counsel promptly objected and the objection was sustained cutting off any further comment by the prosecutor on this subject. Appellant did not request an instruction to disregard, however, the trial court did instruct the jury to consider only the admitted evidence. Appellant then requested a mistrial, which the trial court denied. We hold this improper jury argument could have been corrected by an instruction to disregard, however, appellant did not request that instruction. Accordingly, appellant failed to preserve appellate review of this issue. See id. at 71B72. We overrule appellant=s eighth issue.
Conclusion
Having overruled each of appellant=s issues on appeal, we affirm the trial court=s judgment.
/s/ John S. Anderson
Justice
Panel consists of Justices Anderson, Seymore and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The exact language during the charge conference was:
THE COURT: All right. Count II is already -- it was only one item anyway, so it=s good to go, is it not?
[PROSECUTOR]: I think so, Your Honor.
[DEFENSE COUNSEL]: That=s my review. Look at -- it says Aanus@ on the third line. Go to the fifth line. Okay. That=s correct. It is correct. It=s right.
THE COURT: All right. Then Count III --
[PROSECUTOR]: -- I don=t think requires an election.
[DEFENSE COUNSEL]: I agree.
[2] According to Christy Smejkal, the DPS analyst, twelve semen samples were found and taken from the comforter. However, she testified she decided to only test three of those samples.