In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-11-00411-CR
KEVIN JEROME MITCHELL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 54th District Court
McLennan County, Texas
Trial Court No. 2009-1450-C2, Honorable Matt Johnson, Presiding
September 5, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Kevin Jerome Mitchell was convicted of four counts of aggravated sexual assault
of a child and one count of indecency with a child (his stepdaughter). His punishment
was assessed at five years for indecency with a child and ten, fifteen, twenty, and
twenty years respectively for the other offenses. On appeal, he contends, via eight
issues, that 1) the trial court erred in excluding evidence regarding the motive of the
complainant‟s mother for reporting appellant‟s offenses, 2) the trial court erred in
permitting the complainant‟s sister to offer what amounted to hearsay, 3) the trial court
erred in permitting the complainant‟s mother to testify as an outcry witness, 4) the trial
court erred in permitting a witness to testify to the complainant‟s honesty, 5) article
42.08 of the Code of Criminal Procedure is unconstitutional on its face, 6) article 42.08
is unconstitutional as applied, 7) the use of article 42.08 to impose cumulative
sentences violated his right to jury sentencing, and 8) the trial court erred by admitting
evidence of appellant‟s prior misdemeanor convictions during the punishment phase
because he was not represented by counsel at the time of those convictions. We affirm.
Issue 1 – Exclusion of Evidence
In his first issue, appellant complains that the trial court improperly restricted his
ability to impeach the complainant‟s mother (Shonda) by establishing that she had a
motive to report that he sexually assaulted her daughter. He thought he should have
been permitted to develop the details of her assault upon him in a bar and her
destruction of his yard. We overrule the issue.
The right of confrontation includes the right to cross-examine a witness to attack
her general credibility or show possible bias, self-interest, or motive in testifying.
Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). While trial courts have
discretion in limiting the scope and extent of that cross-examination, id., their discretion
may not be used to prevent the defendant from presenting a vital or relevant defensive
theory. Id. at 562-63.
According to the evidence of record, appellant had allegedly rejected Shonda‟s
sexual advances at a night club. Shonda retaliated by hitting appellant on the back of
the head and vandalizing the yard outside his home. She further admitted, during her
testimony, that she had “basically tore . . . [the] yard up.”
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Another witness testified that Shonda approached appellant at the nightclub in “a
seductive mode,” but appellant did not leave with her. This witness also described
overhearing Shonda call appellant on the telephone the next morning and say, “You
want to start playing with the laws?” Furthermore, appellant himself testified that he had
laughed at Shonda at the nightclub when she fell, she hit him in the back of the head,
and he threatened (the next day) to obtain a restraining order against her because of
her vandalism. Other evidence revealed that shortly after this threat to get a restraining
order, Shonda accused him of sexually assaulting her daughter.
The fact of the vandalism and night club assault were before the jury, as was
evidence of appellant spurning the advances of Shonda. Reasonable minds could
conclude that this evidence was ample for appellant to illustrate that Shonda had motive
to levy purportedly false accusations against him. Given this, the trial court did not
abuse its discretion in refusing to allow appellant to present further details of the assault
and yard damage. Rodriguez v. State, 280 S.W.3d 288, 289 (Tex. App.–Amarillo 2007,
no pet.) (stating that we review a decision to admit or exclude evidence for abuse of
discretion); see Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012)
(stating that a trial court abuses its discretion when its decision falls outside the zone of
reasonable disagreement).
Issues 2 and 3 – Testimony of Complainant’s Sister and Mother
Appellant next complains of the trial court‟s decision to permit the complainant‟s
sister and mother to testify about what the complainant told them of the assaults. This
testimony was inadmissible hearsay, according to appellant. We overrule the issues.
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That these witnesses described being told by the complainant that appellant
either molested or “messed with” the complainant constitutes hearsay. Whether the
testimony fell within some exception to the hearsay rule need not be addressed, though.
This is so because several other witnesses also testified, in greater details, about what
the complainant told them of the assaults. The complainant also testified about the
nature of the assaults. So, because the testimony about which appellant now
complains is redundant of testimony about which he does not complain, we cannot say
that he suffered harm, even if the trial court erred. Leday v. State, 983 S.W.2d 713,
716-18 (Tex. Crim. App. 1998) (holding that the improper admission of evidence is
harmless when other such evidence is admitted without objection); accord Marshall v.
State, 210 S.W.3d 618, 631 (Tex Crim. App. 2006) (refusing to find error because like
evidence was admitted elsewhere without objection)
Issue 4 – Bolstering
Appellant next contends that the trial court erred in admitting testimony that
bolstered the veracity of the complainant. The testimony in question consisted of a
detective stating that the complainant‟s body language exhibited when being
interviewed indicated she was being truthful or honest. We overrule the issue.
To the extent that “bolstering” is impermissible,1 it is so when the evidence is
used to add credence or weight to some earlier admitted and unimpeached piece of
evidence. Valcarcel v. State, 765 S.W.2d 412, 415 (Tex. Crim. App. 1989). At the time
1
Bolstering is “any evidence the sole purpose of which is to convince the factfinder that a
particular witness or source of evidence is worthy of credit, without substantively contributing „to make the
existence of a fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence.‟” Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009).
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of the detective‟s testimony, the complainant had not yet testified.2 Therefore, his
comment could not be viewed as impermissibly bolstering the complainant‟s credibility.
Id.
Issues 5 and 6 – Constitutionality of Article 42.08
In his next two issues, appellant attacks the constitutionality of article 42.08 of the
Code of Criminal Procedure. Per the latter, a defendant convicted in two or more cases
may have his sentences ordered to run cumulatively. TEX. CODE CRIM. PROC. ANN. art.
42.08(a) (West Supp. 2012). Appellant believes that the provision constitutes cruel and
unusual punishment since consecutive sentences allegedly can be administered in an
arbitrary and unpredictable manner and the trial court has no obligation to issue findings
or reasons explaining its decision. We overrule the issue.
Though it concerned the constitutional right to due process, an identical
argument was raised and rejected in Johnson v. State, 492 S.W.2d 505 (Tex. Crim.
App. 1973). There the court held that “[o]nly recently in Hammond v. State, 465 S.W.2d
748 (Tex.Cr.App. 1971), . . . [we] considered the very contention advanced by the
appellant and held Article 42.08 . . . to be constitutional. Further, we reject the claim
that the statute could be constitutional only if certain standards are set forth to guide the
court in the exercise of its discretion.” Id. at 506. And, while appellant acknowledges
the holding in Johnson, he nonetheless argues that it should be reconsidered given
subsequent United States Supreme Court precedent explaining when the death penalty
constitutes cruel and unusual punishment.
Yet, we do not have a death penalty case before us. This is of import since
appellant himself recognizes that the “Supreme Court treats death penalty cases
2
Only one other witness, a crime scene technician, had testified at that point.
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differently than non-capital cases . . . .” So, we are bound to follow Johnson. See
Sharp v. State, No. 11-11-00185-CR, 2013 Tex. App. LEXIS 7235, at *16 (Tex. App.–
Eastland June 13, 2013, no pet. h.) (not designated for publication) (stating that “[a]s an
intermediate appellate court, this court is bound by the precedent of the Court of
Criminal Appeals”). We leave it to the Court of Criminal Appeals to modify its
precedent. The issue is overruled.
Issue 7 – Right to Jury Sentencing
Next, appellant contends that the statutory authority of a trial court to cumulate
sentences denies him his statutory right to have a jury to decide his punishment. TEX.
CODE CRIM. PROC. ANN. art. 37.07 § 2(b) (West Supp. 2012). A like argument, but one
involving the constitutional right to a jury trial, also was raised and rejected by the Court
of Criminal Appeals in Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
We see no reason why the rationale underlying Barrow is any less persuasive viz his
rights to a jury trial arising under Texas statute.
More importantly, since appellant is invoking the statutory aspect of his right to a
jury trial, logic compels that the creator of that statute (i.e., the Texas legislature)
determines the scope of the statutory right. Because that very same body has enacted
another statute vesting the decision to cumulate or not within the discretion of the trial
court, it would seem that the legislature implicitly excluded from the statutory right to a
jury trial the authority for a jury to cumulate sentences.
In sum, we overrule the issue.
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Issue 8 – Admission of Misdemeanor Offenses
Finally, appellant contends the trial court erred in admitting evidence of his prior
misdemeanor convictions during the punishment phase because the judgments are void
since they fail to show he was represented by or legitimately waived counsel. We
overrule the issue.
Years ago, the United States Supreme Court stated in Burgett v. Texas, 389 U.S.
109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), that waiver of counsel from a silent record in
a felony judgment could not be presumed for purposes of establishing guilt or
enhancement of punishment for another offense. Id. 389 U.S. at 115, 88 S.Ct. at 262;
see Bray v. State, 531 S.W.2d 633, 634 (Tex. Crim. App. 1976) (stating that waiver of
counsel cannot be presumed from a silent record). In other words, the State could not
use a prior felony conviction to establish guilt or enhance punishment if the record
pertaining to that conviction failed to show that the defendant had counsel or
legitimately waived counsel. See Bray v. State, supra (noting that because the
undisputed evidence illustrated that Bray was indigent, had not been represented by
counsel at the revocation hearing and sentencing, and had not waived counsel, the
Brazos County conviction was invalid and could not be used for enhancement of
punishment). Yet, the apparent, uncompromising nature of the Burgett holding has
been called into question. For instance, our sister court in San Antonio stated that the
decision does not mandate in all cases a presumption of irregularity. Deleon v. State,
No. 04-01-00412-CR, 2002 Tex. App. LEXIS 1458, at *2 (Tex. App.–San Antonio,
February 27, 2002, pet. ref‟d) (not designated for publication). Instead, it read Burgett
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as applying the presumption there “because it involved the purported waiver of the right
to counsel at a time when that right had not yet been recognized.” Id.
So too has the Supreme Court itself cautioned against reading Burgett as
creating some all-encompassing presumption of invalidity. One need only read Parke v.
Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) to see that. In Parke, the
Court stated that in Burgett:
. . . the Court held that a prior conviction could not be used for sentence
enhancement because the record of the earlier proceeding did not show
that the defendant had waived his right to counsel . . . . Respondent
suggests that because Burgett involved a state recidivism proceeding, it
stands for the proposition that every previous conviction used to enhance
punishment is "presumptively void" if waiver of a claimed constitutional
right does not appear from the face of the record . . . . We do not read the
decision so broadly. At the time the prior conviction at issue in Burgett was
entered, state criminal defendants' federal constitutional right to counsel
had not yet been recognized, and so it was reasonable to presume that
the defendant had not waived a right he did not possess. As we have
already explained, the same cannot be said about a record that, by virtue
of its unavailability on collateral review, fails to show compliance with the
well-established Boykin requirements.
Id. 506 U.S. at 31, 113 S.Ct. at 524. Thus, we reject appellant‟s construction of
Burgett here and instead adopt the rule suggested by the Court of Criminal Appeals in
Disheroon v. State, 687 S.W.2d 332 (Tex. Crim. App. 1985) and involving prior
misdemeanor convictions used for enhancement purposes. In those situations, the
“appellant has the burden to prove that with respect to the enhancing misdemeanors (1)
he was indigent, (2) he was without counsel, and (3) he did not voluntarily waive the
right to counsel.” Disheroon v. State, 687 S.W.2d at 334; accord Deleon v. State, 2002
Tex. App. LEXIS 1458, at *1-2 (stating that once the State establishes a prima facie case
by introducing a copy of the judgment and sentence and connecting it with the
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defendant, the judgment is presumed regular and the burden is on the party attacking
the prior conviction to establish its invalidity).
Here, appellant does not contend that the State failed to introduce a copy of the
misdemeanor judgments into the record and connect them to him. Instead, he sought
to impose upon the State the burden to prove that he either had legal counsel or
legitimately waived counsel in each of those prior convictions. Yet, the burden was his
to prove the judgments invalid per Disheroon and Deleon. That, he did not do. So, the
trial court did not err in allowing their admission.
Having overruled each issue, we affirm the judgments.
Per Curiam
Do not publish.
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