COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-394-CR
2-08-395-CR
GARY SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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Appellant Gary Smith appeals from his convictions and sentences in two trial
court cause numbers involving multiple sexual offenses against his daughters
Christine and Rhonda.1 Appellant brings thirteen points challenging (1) the trial
court’s alleged failure in each case to require the State to make proper elections and
to instruct the jury of the State’s “ostensible” elections (points one through six); (2)
the trial court’s denial of appellant’s written motion for continuance (point ten); (3) the
1
In accordance with the comment to rule of appellate procedure 9.8, we
have used aliases to identify the complainants and family members other than
appellant. See Tex. R. App. P. 9.8 cmt.
trial court’s admitting evidence of an extraneous assault on Christine and her half-
sister in Lubbock (point eleven); (4) the trial court’s exclusion of testimony from a
CPS investigator (point twelve); (5) the trial court’s limiting cross-examination of
Rhonda (point thirteen); (6) and the permissibility of imposing life sentences in four
of the convictions for sexual assault of Christine under the ex post facto protections
of the State and federal constitutions (point nine), or the legal and factual sufficiency
of the evidence to support the jury’s fact findings supporting the elevation of the
punishment range for those offenses from second degree to first degree felonies
(points seven and eight). W e affirm in part and reverse and remand in part.
I. Procedural Background 2
In cause number 2-08-394-CR, the case involving Christine, the jury convicted
appellant of one count of indecency with a child and seven counts of sexual assault
of a child. Four of the sexual assault counts were alleged to be first degree felonies
under penal code section 22.011(f), which provides that the punishment for sexual
assault of a child is enhanced from a second degree to a first degree felony if “the
victim was a person whom the actor was prohibited from marrying or purporting to
marry or with whom the actor was prohibited from living under the appearance of
being married under Section 25.01.” Tex. Penal Code Ann. § 22.011(f) (Vernon
Supp. 2009). In accordance with the jury’s assessment of punishment, the trial court
2
W e will discuss the factual background of these cases in more detail in our
analysis of appellant’s first six points.
2
sentenced appellant to twenty years’ confinement for the indecency conviction,
twenty years’ confinement each for three of the sexual assault offenses, and
confinement for life for each of the four sexual assault offenses that were charged
as first degree felonies. The trial court ordered that all of these sentences be served
consecutively.
In cause number 2-09-395-CR, the case involving Rhonda, the jury found
appellant guilty of two counts of aggravated sexual assault of a child and two counts
of sexual assault of a child. In accordance with the jury’s assessment, the trial court
sentenced appellant to twenty years’ confinement on the sexual assault offenses and
confinement for life for the aggravated sexual assault offenses. The trial court also
ordered that these sentences be served consecutively, beginning after the
sentences imposed in cause number 2-09-394-CR had been completed.
II. Trial Court’s Failure to Inform Jury of State’s Elections
In his first six points, appellant contends generally that the trial court erred by
failing to inform the jury of the State’s election of the specific offenses it would rely
on for each of the twelve counts set forth in the indictments. The State concedes
3
charge error in both cause numbers,3 but it disputes that appellant was harmed.4
Accordingly, we will review whether appellant was harmed by the failure to include
an instruction incorporating the State’s elections and limiting the jury’s consideration
of extraneous sexual offenses to the purpose of determining the relationship
between appellant and his daughters or the state of mind of any of them. See Tex.
Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2009); Dixon v. State, 201
S.W .3d 731, 734 (Tex. Crim. App. 2006); Rivera v. State, 233 S.W .3d 403, 406 (Tex.
App.—W aco 2007, pet. ref’d).
A. Standard of Review
W e must first determine under what standard to assess harm. Appellant
contends that because the jury was not adequately informed of the State’s elections,
this case is tantamount to a case in which no election was made at all and, thus, that
we should use the constitutional harm standard applied in Phillips v. State, 193
S.W .3d 904, 913–14 (Tex. 2006); see Duffey v. State, No. 05-08-00260-CR, 2009
3
W hen the State elects which of multiple acts it will rely on for conviction,
a defendant is entitled to an instruction charging the jury to consider only the elected
act in deciding guilt and limiting the jury’s consideration of all other unelected acts
to the purposes for which they were admitted. Duffey v. State, No. 05-08-00260-CR,
2009 W L 2596109, at *2–3 (Tex. App.—Dallas Aug. 25, 2009, no pet.); Rivera v.
State, 233 S.W .3d 403, 406 (Tex. App.—W aco 2007, pet. ref’d).
4
The State frames the issue thusly: “W hat is really at issue in this case is
not that the State failed to adequately elect the offenses upon which it relied for
conviction or that the charge failed to adequately identify the offenses relied upon
for conviction. Instead, the issue is that the trial court’s instruction on extraneous
offenses alone was insufficient to serve as an adequate limiting instruction.”
4
W L 2596109, at *3 (Tex. App.—Dallas Aug. 25, 2009, no pet.). The State contends
that we should use the Almanza egregious harm standard instead because this case
involves charge error and appellant did not go far enough in preserving his complaint
in the trial court: although appellant objected to the part of the charge indicating that
the State is not bound by specific dates, and complained to the trial court, “How is
the jury informed of their election?” in the context of discussing the charge, the State
claims that appellant should have gone further and requested a specific limiting
instruction from the trial court. But Almanza requires only a timely objection or
request to preserve charge error. Almanza v. State, 686 S.W .2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh’g). Appellant objected in the trial court on the basis
that the State’s election was not adequately communicated to the jury in the charge,
and the trial court overruled the objection; thus, appellant preserved his complaint
about this error. See Tex. R. App. P. 33.1(a)(1); Almanza, 686 S.W .2d at 171.
Error in the charge, if timely objected to in the trial court, requires reversal if
the error was “calculated to injure the rights of [the] defendant,” which means no
more than that there must be some harm to the accused from the error. Tex. Code
Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor v. State, 871 S.W .2d 726,
731–32 (Tex. Crim. App. 1994); Almanza, 686 S.W .2d at 171; see also Barrios v.
State, 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (“A claim of jury-charge error is
reviewed using the procedure set out in Almanza.”); Pope v. State, Nos. 02-08-
00235-CR, 02-08-00236-CR, 02-08-00237-CR, 2009 W L 3416459, at *12 (Tex.
5
App.—Fort W orth Oct. 22, 2009, pet. ref’d) (mem. op., not designated for
publication) (applying “some harm” standard to trial court’s failure to inform jury of
election in charge). In other words, a properly preserved error will require reversal
as long as the error is not harmless. Almanza, 686 S.W .2d at 171. In making this
determination, “the actual degree of harm must be assayed in light of the entire jury
charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole.” Id.; see also Ovalle v. State, 13
S.W .3d 774, 786 (Tex. Crim. App. 2000).
B. The Indictment
In the case involving Christine, the indictment alleged that appellant touched
her breast on or about January 15, 2005 when she was under the age of seventeen.
The State alleged in Count II that appellant intentionally or knowingly caused
Christine’s mouth to contact his sexual organ on or about March 15, 2005, and in
Count III, the State alleged that on or about May 15, 2005, appellant intentionally or
knowingly caused Christine’s sexual organ to contact his mouth; the State alleged
that both of these counts occurred before Christine turned seventeen. In Counts IV
through VIII, the State alleged that appellant intentionally or knowingly caused his
sexual organ to contact Christine’s sexual organ when she was under seventeen
years old on or about the following dates: July 15, 2005 (Count IV), September 15,
2005 (Count V), November 15, 2005 (Count VI), January 15, 2006 (Count VII), and
6
March 15, 2006 (Count VIII).5 The State further alleged in Counts V through VIII the
additional fact that Christine is a person whom appellant is prohibited from marrying,
which fact, if proven, would raise the punishment range for the offense from a
second degree to a first degree felony. See Tex. Penal Code Ann. § 22.011(f).
In the case involving Rhonda, the indictment alleged that appellant penetrated
her vaginally on or about July 15, 2003 and on or about January 15, 2004—when
she was under fourteen—and that he penetrated her vaginally on or about July 15,
2005 and on or about September 2, 2006—when she was fourteen or older but
younger than seventeen.
C. Voir Dire
During voir dire, one of the prosecutors discussed the State’s burden of proof
regarding the dates of the offenses alleged in the indictments:
One of the elements we have to prove is the date when offenses
occur. That’s a little bit misleading. W hat the indictments - - the way
the indictments read is on or about a certain date. That’s misleading.
W hat the law says is that for these kinds of cases, that creates
a ten-year window that starts with the day the case was filed with the
courts and then - - so basically the date of the indictment, and then
5
Although all of these counts alleged that Christine was under the age of
seventeen, she turned seventeen in June 2005, before all of the dates alleged in
Counts IV through VIII. However, appellant did not challenge any of the indictment’s
allegations in the trial court, so he did not preserve this issue. See Garcia v. State,
981 S.W .2d 683, 686 (Tex. Crim. App. 1998). Moreover, the purpose of alleging
dates in the indictment is to show that the statute of limitations has not yet run; the
proof at trial is what matters for determining whether an offense has occurred. See
id. at 685–86; see also id. at 687 (Meyers, J., concurring).
7
goes back ten years, and if we can show that it occurred within that
window, we’re fine. W e have satisfied the “on or about” language.
And so if the indictment says something like on or about July 7th
or something, and you go, well, we didn’t hear any evidence about July
7th, that’s okay as long as we’re within that window granted by the law.
...
Additionally, in the State’s opening statement, after discussing abuse that
occurred when the family lived in Brownfield, Texas, before they moved to Denton
County, one of the prosecutors told the jury:
They eventually moved to Flower Mound, Texas, which are the
cases that he’s charged with today. . . .
....
As you heard, there are eight counts with [Christine]. There
could be a thousand. She is going to tell you that it happened over and
over and over, and so many times she can’t even tell you the dates.
Now, we talked in voir dire a little bit about why we have “on or
about” language, and it’s usually because kids can’t remember two or
three separate events. You know, they don’t know exactly when it
happened. W hat I anticipate in this trial, it’s going to be exactly the
opposite. Because it happened so many times, she can’t tell you what
dates it happened. She can tell you signposts. She will tell you that it
happened the summer when I was a freshman in high school, when I
was a sophomore, before my birthday, after my birthday. But she’s not
going to tell you it happened December 15, 2005, because it happened
so many times it’s just a blur in her mind. [Emphasis added.]
8
Thus, although the State informed the jury that the evidence would reveal
voluminous instances of a continuing course of sexual conduct, neither in voir dire
nor in its opening statement did the State inform the jury that it would have to choose
only a few out of these thousand occurrences on which to actually convict.
D. Evidence at Trial
1. Christine Smith’s Testimony
Christine, who was twenty years old at the time of trial, testified that she is
appellant’s daughter. Christine first testified about abuse that occurred in
Brownfield, Texas occurring before she turned fourteen.6
a. Brownfield, Texas
In Brownfield, Christine lived with appellant, her father; Heather, her mother;
her younger brother W illiam; and her younger sister Rhonda. W hen Christine was
around ten or eleven, appellant started paying more attention to her and commenting
about her physical appearance, especially the development of her breasts. He told
her she was a “really pretty girl.” One time Heather went out of town, and appellant
said Christine could stay in their bedroom; when Christine rolled over in the bed to
go to sleep, appellant “rolled [her] over and he was holding on to [her] and he
grabbed - - he grabbed [her] hand and he told [her] that it was okay.” He then made
her touch his penis. Later, while they were still living in Brownfield, he would make
6
The family moved to Brownfield when Christine was nine and lived there
until a couple of days before her fourteenth birthday in June 2002.
9
her have oral sex, vaginal sex, and anal sex with him. This happened “[a] lot,
several times,” when everyone was asleep or when appellant kept Christine home
from school. Christine testified that appellant told her what they did together was
“what normal little girls did” and that she was not different from anybody.
b. Flower Mound, Texas
The family moved from Brownfield to a three-bedroom apartment in Flower
Mound, Texas around June 17, 2002, several days before Christine’s fourteenth
birthday. The prosecutor questioned Christine about the summer the family moved
to Flower Mound:
Q. That summer that you moved here, just turned 14 years old, were --
I guess, how long before -- or after you moved here did your dad start
doing things with you again?
A. I think it was shortly after we moved.
Q. W as it still in that summer?
A. Yeah.
Q. Tell me about the first time that you remember it happening when
you guys moved to the apartment.
A. W henever we moved, we got -- my sister and I got new mattresses
and we had bought a lot of new furniture. And I believe it was a couple
nights after we had moved in and he told me that he had wanted to
break in -- he wanted to break in my new mattress.
Q. W hat did he mean?
A. That he wanted to have sex on my new mattress.
Q. Did that happen?
10
A. Yes.
Q. Again, when we talk about sex, what -- again, what body parts
touching where?
A. He stuck his penis in my vagina.
Q. W hen that happened, the breaking in the mattress, where was
everybody else?
A. I don’t remember.
Q. Starting from that summer, how long did you guys live in that
apartment in Flower Mound?
A. Flower Mound, for about three years, I think. W e moved -- we
moved right before my senior year.
Q. So that would be starting from the summer of 2002 going forward to
-- you said right before your senior year so that would be the summer
of 2005?
A. Yes.
The indecency with a child offense was alleged in the indictment to have
occurred on or about January 15, 2005, and two of the sexual assaults were alleged
to have occurred on or about March 15 and May 15, 2005; all of these alleged dates
fall during the time the family lived in Flower Mound.
Christine testified that during the three years the family lived in Flower Mound,
appellant kept a close eye on her; she was not allowed to do anything other than go
to school, but she did participate in band. According to Christine, appellant treated
her like his girlfriend. He held her hand in public, took her out on “dates,” gave her
11
things that he did not give his other children, and was not as hard on her as the other
two. She and her father called each other “Pookie” and wrote each other love notes.
Christine testified that when the family lived in Flower Mound, she and
appellant did something “physical,” “[s]ometimes every other day, sometimes every
day.” Appellant would occasionally stop, but only for “a week or two or so.”
According to Christine, during the three years the family lived in Flower Mound,
appellant penetrated her vaginally more than fifty times,7 penetrated her anally more
than fifty times, made her give him oral sex, and performed oral sex on her.
Christine also said that during these three years, appellant would touch her breasts
with his hands whenever they had sex.
Christine was afraid to tell anyone what was happening because appellant told
her he would make her regret doing so, and at least once he told her that he would
kill her. She testified to a time that she fought with appellant because she wanted
to move out of the house; he physically assaulted her and threatened her.
c. Argyle, Texas
The family moved from Flower Mound to Argyle 8 shortly after the end of
Christine’s junior year of high school, in May 2005. Five of the sexual assault counts
are alleged in the indictment to have occurred during this time, around July 15,
7
Christine testified that appellant used a condom most of the time.
8
Although the house was physically located in the city of Denton, it had a
street address in Argyle. Both Argyle and Denton are located in Denton County.
12
September 15, and November 15, 2005, and around January 15 and March 15,
2006.
Christine testified generally that all of the same types of sexual contact with
appellant continued to occur in Argyle. She testified to only one specific incident:
one day, appellant made Christine give him oral sex in his bedroom. He made a
videotape of the encounter, telling Christine he wanted to have something to watch
when she was not there.
Christine also testified that when she was working at Albertson’s, appellant
confronted her store manager Patrick one day and told him Christine would not be
coming to work that day. According to Christine, appellant did not like Patrick
because he thought Christine was dating him, but she was not.9
d. In General
Toward the end of the State’s initial direct of Christine, the prosecutor
specifically asked her the following:
Q. Now, before you turned 17, so when you were 14, 15 and 16 years
of age, did your dad have his sexual organ, his penis, contact your
sexual organ, your vagina?
A. Yes.
Q. And did that happen more than five times?
A. Yes.
9
Christine later admitted in front of the jury that she lied about not dating
Patrick.
13
Q. Lots and lots of times?
A. Yes.
Q. Before you turned 17 -- 14, 15, 16 years old - - did your dad have his
sexual organ contact your mouth?
A. Yes.
Q. Multiple, multiple times?
A. Yes.
Q. And before you turned 17, did your mouth contact his sexual organ?
A. Yes.
Q. Did his mouth contact your sexual organ?
A. Yes.
Q. Did his hand contact your breasts?
A. Yes.
Christine also testified at length about when she left home for good; she called
one of her half-sisters 10 who lived in Lubbock and asked her to come to Argyle and
pick her up. Christine told her mother but she did not tell appellant; she left him a
note. W hen appellant found out Christine had left, he followed her and her half-
sister to Lubbock. He called each of them during the trip, telling Christine to come
home and telling her half-sister to give Christine back. He threatened them, and
when he got to Lubbock, he chased them in their car, eventually ramming their car
10
Christine has four half-sisters, all of whom are appellant’s daughters.
14
with his vehicle. Christine and her half-sister called the police, but they eventually
signed affidavits of nonprosecution.
2. William Smith’s Testimony
Christine’s brother W illiam testified that Christine and appellant had a closer
relationship than appellant did with him or Rhonda. For instance, Christine and
appellant spent more time together. Appellant paid a lot of attention to Christine but
not to W illiam and Rhonda. Appellant went everywhere Christine went. W illiam
testified that Christine’s and appellant’s relationship was not a regular
father/daughter relationship; instead, it was more like a “boyfriend/girlfriend kind of
relationship . . . [b]ecause that’s the way that they acted.” Appellant was always very
attached to Christine “in an emotional way.”
According to W illiam, appellant and Christine “would go on dates together,”
eat out, and go to the movies; they were “attached to each other’s hip.” W illiam and
Rhonda wanted to be included in those types of activities, but appellant would put
them off. According to W illiam, “There were times where I would come up the stairs
and she would be at the doorway and . . . pretty much expose herself to him. And
then I would show up and then she would cover herself up.” W illiam said this would
happen when Christine came out of the shower and appellant went into her
bedroom; either she would open up her bathrobe or appellant would be doing it.
W illiam said appellant knew that W illiam knew these things were happening.
15
W illiam said appellant said inappropriate things about Christine to him outside
their mother’s presence, such as “‘Doesn’t your sister have a nice ass,’ or, you know,
‘Doesn’t she have big boobs,’ and stuff like that.’” It made William feel disgusted.11
After Christine left home for Lubbock, appellant became emotional and angry;
“[h]e would listen to sad songs, [and] he’d lock himself in his bathroom and drink.”
He listened to one song in particular, “The Best I Ever Had.” W illiam thought the
song had to do with Christine. More than once after Christine left for Lubbock,
appellant told W illiam that he and Christine had been lovers; he said they were going
to run away together and have a baby. Appellant told W illiam that he and Christine
had had sex “[p]retty much all over.” But what appellant said about Christine
depended on his mood; sometimes he would call her a slut, and he told W illiam it
was the boys against the girls, and the girls would try to accuse the boys of things
they had not done. After Christine left, Heather confronted appellant and asked him
why he had “raped” Christine; appellant responded that they had been lovers.
According to W illiam, after Christine left for Lubbock, appellant told him, “You
remember the time when me and [Christine] would go in there in her room and watch
movies, you know, things were happening under the covers.” Appellant told W illiam
that Christine “would do anything to him if he asked.” Appellant told W illiam he
preferred Christine over Heather because Christine showed him more attention.
11
William also said that appellant had told him that before he could have a
girlfriend, appellant “would have to try [her] out.”
16
William recounted witnessing an event when the family lived in Flower Mound.
He had been hiding behind Heather and appellant’s bed to scare his dad, and he
saw Christine and appellant. Christine wanted to get a dog, and appellant asked,
“W hat are you going to do for me,” and started to push Christine down toward his
“private areas.” Christine did not say anything; they did not know W illiam was there.
On cross-examination, W illiam explained that appellant told him that he and
Christine had had sex in appellant’s bed, Christine’s bed, Rhonda’s bed, W illiam’s
bed, and the family’s couches in their residences. W hen asked if he meant the
houses in both Flower Mound and Argyle, he said, “Yes.”
3. Rhonda Smith’s Testimony
Rhonda testified that she was eighteen at the time of trial.12 She was thirteen
when the family moved to Flower Mound. W hile they lived in Flower Mound, when
Rhonda was in seventh grade, appellant had vaginal intercourse with her in her own
bed. He did this at least twice when she was thirteen at the apartment in Flower
Mound. At least twice after she had turned fourteen but before she had turned
seventeen, he had vaginal intercourse with her at the apartment in Flower Mound.
Other than those times, the same thing happened in Flower Mound a “lot more than
four.” Rhonda explained that the same thing also happened in her bedroom after the
family moved to Argyle.
12
She was born in 1990.
17
Rhonda admitted that when a police officer and CPS interviewed her after
Christine reported what had happened to her, she denied that appellant had done
anything to her. Rhonda said she did not tell about these events when she was first
interviewed at the Child Advocacy Center because she was scared of appellant.
She and appellant did not really talk about these incidents except that he told her he
would kill her if she told anybody.
According to Rhonda, appellant treated her and Christine differently. “He
would do everything for [Christine]. [Christine] was like his favorite, and he wouldn’t
really treat me like I was his daughter. He would treat me like I was some pet or
something.” He would buy Rhonda things only sometimes; “[i]t was mainly
[Christine] that he got everything for.” She could not really tell the nature of
appellant’s and Christine’s relationship, though, because she “didn’t really see
anything.”
4. Heather Smith’s Testimony
Heather Smith, appellant’s wife and Christine, Rhonda, and W illiam’s mother,
testified generally about appellant’s relationship with Christine: how he favored her
over W illiam and Rhonda, how he noticed and commented on her developing
physical appearance, and how he would kiss Christine and hold her in his lap in an
inappropriate way. She also corroborated W illiam’s testimony that after Christine left
for Lubbock, appellant was “very angry” at Christine because she had left. Heather
kept asking appellant for a long time afterward why Christine had left and why he
18
was so angry; he finally told her that he and Christine “were in a relationship” and
were “lovers.” W hen she reminded appellant that Christine was his daughter, he
said that she did not act like one and that they were going to be together. W hen
W illiam wanted to know why Christine had left, Heather had him stand by a window
while she asked appellant why he had had sex with Christine. W illiam heard
appellant say how Christine was “good” and “better than” Heather.
E. State’s Election
Before resting its case against appellant—outside the jury’s presence—the
State elected the dates of the offenses upon which it would pursue conviction. The
following exchange occurred with regard to the offenses involving Christine:
MR. PAUL [for the State]: In this instance, the victim, [Christine]
indicated that it happened literally hundreds and perhaps up to a
thousand times. She indicated that it happened in the apartment when
they moved there, the Denton -- Flower Mound apartment -- Denton
County Flower Mound apartment, that it happened in the Argyle house.
I asked her specifically on Count I if the defendant had touched
her breasts when she was younger than 17 years of age in or around
2005. She indicated, yes, that it happened at least once, if not more
times. The time where she indicated that it did happen, we would elect
on that to be the allegation in that count.
I asked her if the defendant caused her mouth to contact his
sexual organ when she was under the age of 17 and if that happened
in the time frame that we talked about, 2003 to 2006, she indicated yes,
on multiple occasions. That would satisfy, and we would elect on
Count II and on Count III. That would be our election on II and III. . . .
....
19
Count II is her mouth contacting the sexual organ of the
defendant in 2005 when she was under 17. She indicated yes. So we
would elect one of those occasions that she’s testified about.
Count III, we’re talking about May of ‘05, caused the sexual organ
of [Christine] to contact the mouth of the defendant. I asked her if that
had occurred. She indicated, yes, he had performed oral sex on her
and that that happened in that time frame and before she turned 17. I
asked her specifically in regards to all these allegations if it happened
before her 17th birthday, and she indicated yes. So we would elect on
one of those occasions for Count III.
Count IV, the allegation is that knowingly caused the sexual
organ of [Christine] to contact the defendant’s sexual organ, whether he
penetrated her with his penis. She indicated, yes, that that happened
on multiple, multiple occasions. And I asked her if it happened before
the age of 17, while she was still 16 or younger. She indicated yes.
W e would elect for one of those to satisfy that count.
MR. BORAH [for appellant]: That would be prior to her 16th birthday in
2005?
MR. PAUL: Correct.
MR. BORAH: I believe her birthday is 1989; is that correct?
Eighty-eight.
MR. PAUL: Her birthday is in ‘88.
MR. BORAH: So it would have been prior to her birthday in
2004? You’re saying prior to her 16th birthday.
MR. PAUL: Certainly prior to her 17th birthday. I mean, my
questions directed to her was did this happen prior to you turning 17,
so you were 16, 15 or 14, and she indicated yes.
MR. BORAH: So then that would be 2005 or earlier?
MR. PAUL: Yes. Count V, allegation is causing the sexual organ
of [Christine] to contact the sexual organ of the defendant. Again, we’re
talking about penetration of the vagina with the defendant’s penis prior
20
to the age of 17. She indicated, again, that that happened on multiple
occasions. W e would elect one of those to satisfy Count V.
Count VI, again, is an allegation of contacting the sexual organ
of [Christine] to contact the sexual organ of the defendant, the same
allegation as before. She indicated that that had happened on multiple,
multiple occasions younger than the age of 17. W e would elect one of
those.
Count VII, cause the sexual organ of [Christine] to contact the
sexual organ of the defendant, same thing as before in Count VI, prior
to the age of 17. W e would elect, again, one of those to satisfy that
count.
Count VIII, sexual organ of [Christine] contacting sexual organ of
defendant prior to the age of 17. She testified that that happened
multiple, multiple times, again, satisfying Count VIII.
Those would be our elections in regards to both indictments,
Judge. [Emphasis added.]
As for the allegations involving Rhonda, the State elected as follows:
She said that in between the dates of the summer of 2003 and
then up to 2006, she had been sexually penetrated by her father,
[appellant], on four separate occasions, two of which she was under the
age of 14, two of which she was under the age of 17, that she had been
penetrated by his sexual organ and her sexual organ. I asked her
specifically if there were four separate occasions. She indicated yes.
So we will be electing to go forward on those four in regards to that
cause.
....
She indicated that it happened in Argyle, but our election is going
to be that the four occurred while she lived in the Flower Mound
apartment. [Emphasis added.]
21
W e agree with the State that these elections are adequate. The elections
were general because the complainants’ testimony regarding the offenses was
general; however, the State did limit the time frame to those events occurring before
Christine turned seventeen and when Rhonda was under fourteen and between
fourteen and sixteen, to which both girls had testified. Both of their birthdates were
in evidence. And the State further limited its elections regarding the offenses against
Rhonda specifically to when the family was living in Flower Mound. Thus, we
overrule appellant’s first and fourth issues claiming that the trial court erred by
refusing to require the State to make an adequate election.
F. The Jury Charges
The jury charge in each case tracked the allegations verbatim from the
indictment, along with the “on or about” dates. Also included in each charge are the
following paragraphs:
You are further charged as the law in this case that the state is
not required to prove the exact date alleged in the indictment but may
prove the offense if any to have been committed at any time prior to the
11th day of October, 2007, the presentment date of the indictment, so
long as said offense if any, occurred within ten years of the date of the
presentment of the indictement; you are further instructed that the day
the indictment was presented and the day of the offense, if any,
occurred, shall not be computed within the ten year limitation period.
You are instructed that if there is any testimony before you in this
case regarding the defendant’s having committed offenses other than
the offense alleged against him in the indictment in this case, you
cannot consider said testimony for any other purpose unless you find
and believe beyond a reasonable doubt that the defendant committed
such other offenses, if any were committed, and even then you may
22
only consider the same in determining the intent of the defendant, if
any, in connection with the offense, if any, alleged against him in the
indictment or in determining the credibility of any witness, including the
defendant, in this case, and for no other purpose.
G. Closing Argument
During the State’s initial closing argument, the prosecutor stated as follows:
One, the date. I hope you’ll recall that we talked about that in voir
dire. W e are not required to prove a specific date. In a case like this,
there is no way you could ever do that, okay? And the law that we
talked about, what seems like a year ago, back on I guess it was
Monday, about that ten-year window, that’s in here and the judge just
read that to you in each case, okay? All we have to do is prove that the
crimes occurred within that ten-year window and we have satisfied the
on or about.
In fact, if you look at [Christine’s] case, you will actually see, if
you go back and you do the math, some of the dates and some of the
counts are actually after [Christine] was 17. That doesn’t matter, okay?
W hat matters is --
MR. BORAH: Objection. That’s a wrong statement of the law,
Your Honor.
MR. CALVERT: That’s a precisely correct statement of the law.
THE COURT: Denied. Overruled.
MR. BORAH: It’s also an argument contrary to the jury charge.
The charge says that they have to prove that she was a child younger
than 17 years of age then and there on the date that they have alleged.
THE COURT: Overruled.
MR. CALVERT: Once again, the law does not require us to prove
specific dates. So what matters is the evidence that was presented to
you through testimony throughout the course of this trial. And it was
very clear through [Christine] and it was very clear through [Rhonda]
that the crimes we’re talking about with [Christine] all happened in
23
Denton County prior to her 17th birthday. With [Rhonda], some of them
happened prior to her 14th birthday, some of them happened -- the rest
of them happened prior to her 17th birthday. So if you go back there
and, you know, you’re doing the math, that’s okay. That ten-year
window, that’s why that’s there.
Also, one of the last things that Tony did was he introduced a
statute, the law, okay? It’s the Texas bigamy statute, 25.01 of the
Penal Code. The reason that’s in is on [Christine’s] case, there are
several counts, I think there is four of them, the way it’s worded is you
commit a sexual assault and the victim is someone who the actor, the
defendant, was prohibited from being married to or holding themself out
as married to.
W e talked in voir dire about how there’s lots of different kinds of
sexual assault, lots of different ways to commit sexual assault. That’s
one of them. That’s what he’s been charged with. If you’re married to
one person and you commit a sexual assault against someone other
than your wife -- if you’re married to this person, by law, you can’t be
married to this person -- that’s a specific type of sexual assault. That’s
what he’s been charged with on four of those counts. That’s why that’s
in there. I wanted y’all to understand that. [Emphasis added.]
H. Analysis
As the court of criminal appeals has explained,
[R]equiring the State to elect at the close of its evidence forces
it to formally differentiate the specific evidence upon which it will rely as
proof of the charged offense from evidence of other offenses or
misconduct it offers only in an evidentiary capacity. This allows the trial
judge to distinguish the evidence which the State is relying on to prove
the particular act charged in the indictment from the evidence that the
State has introduced for other relevant purposes. Thus, the trial court
can instruct the jury on the proper use and weight to accord each type
of evidence. Moreover, the election requirement protects fundamental
rights such as notice and unanimity, insuring both that the defendant is
aware of precisely which act he must defend himself against, and that
the jurors know precisely which act they must all agree he is guilty of in
order to convict him.
24
Phillips, 193 S.W .3d at 910 (footnote ommitted). Judge Cochran has acknowledged
the difficulty of applying the election requirements to cases such as these that
involve a continuing course of sexual abuse. See Dixon, 201 S.W .3d at 736–37
(Cochran, J., concurring).
To determine whether an appellant has been harmed with regard to the failure
to elect, the court of criminal appeals has considered how the error impacted the
case with respect to four main purposes underlying the election rule: (1) the
appellant’s need to be protected from the admission of extraneous offenses; (2) the
risk that the jury found the appellant guilty of the charged offenses not because they
were proven beyond a reasonable doubt but because of the admission of the
extraneous offenses; (3) the risk of a nonunanimous verdict; and (4) whether the
admission of the extraneous offenses deprived appellant of adequate notice
regarding which offense to defend against. Dixon, 201 S.W .3d at 734–36; Phillips,
193 S.W .3d at 913–14. Accordingly, we will consider these factors in analyzing
whether appellant was harmed by the trial court’s failure to instruct the jury of the
State’s elections in our harm analysis.
1. Offenses Against Christine Other Than Count II
Christine testified that when the family lived in Flower Mound, appellant
touched her breasts whenever they had sex; she also testified to multiple acts of
vaginal penetration occurring when she was under seventeen. She said that
appellant performed oral sex on her when they lived in Flower Mound, but she did
25
not specify how many times. Other than her recollection that appellant penetrated
her vaginally after suggesting they try out her new mattress, all of Christine’s
testimony regarding the vaginal penetrations—as well as the breast touching—was
nonspecific and indistinguishable from the rest of the offenses. See Duffey, 2009
W L 2596109, at *6.
As for these offenses—the breast touching, appellant-on-Christine oral sex,
and the vaginal penetrations—there is no concern about the admission of
extraneous sexual acts; they were admissible under article 38.37, section 2 of the
code of criminal procedure to show the relationship between appellant and Christine
as well as the state of mind of either of them. See Tex. Code Crim. Proc. Ann. art.
38.37, § 2; Dixon, 201 S.W .3d at 734–35; Rivera, 233 S.W .3d at 406.
As for the second concern, there is little, if any, risk that the jury convicted
appellant solely because of the extraneous offenses—if it believed that Christine’s
testimony regarding a continuing course of conduct involving nonspecific,
indistinguishable offenses was credible as to one, the jury must have likewise
believed her testimony was credible as to all. See Dixon, 201 S.W .3d at 735;
Duffey, 2009 W L 2596109, at *5. Moreover, Christine’s testimony was corroborated
generally by her brother’s and mother’s testimony about what appellant said, and
appellant’s counsel attacked the credibility of all the family members as a collective
unit, on the theory that they were engaged in a conspiracy against appellant.
26
Additionally, there is little risk that the jury failed to return a unanimous verdict
as to these offenses. Unanimity in this context means that each and every juror
agreed that appellant committed the same, single, specific criminal act to convict him
of each of the charged offenses. Ngo v. State, 175 S.W .3d 738, 745 (Tex. Crim.
App. 2005). The final sentence of the charge reads: “It is the Presiding Juror’s duty
to preside at your deliberations, vote with you, and when you have unanimously
agreed upon a verdict, to certify to your verdict by using the appropriate form, and
signing the same as Presiding Juror.” Although the charge did not inform the jury
that they had to unanimously agree on specific acts in order to convict on each
count, it did notify the jury that its verdict had to be unanimous.
As in Dixon, the only distinguishing detail about all of these offenses appears
to be where each of them occurred—in Christine’s bedroom or appellant’s. 201
S.W .3d at 735. W e perceive no risk of the jury believing only Christine’s testimony
about vaginal penetrations occurring in one of those rooms as opposed to the other;
Heather testified that she was frequently out of the home at work while appellant
stayed home with the children, and although there was testimony that Christine and
Rhonda shared a room, there is no evidence about what time of day these events
occurred or who was around.
As for the timing of each of these offenses, which were alleged to have
occurred when Christine was under the age of seventeen, Christine told the jury at
the beginning of her testimony that her birthdate is June 20, 1988. She later testified
27
that she moved to Argyle at the end of May 2005. The prosecutor asked her, “So
were you sixteen when you guys lived in Argyle?” She answered, “Yeah, yes. I
turned 17 shortly after.” So the testimony shows that Christine was sixteen for
around three weeks while the family lived in Argyle.
However, in closing argument, the prosecutor told the jury that the charged
offenses were limited only to offenses occurring when Christine was under
seventeen. So there is little, if any, risk that some of the jury voted to convict for acts
occurring in Argyle after Christine turned seventeen, while others voted to convict
for acts occurring in Flower Mound or Argyle while Christine had not yet turned
seventeen.
Finally, we do not believe that appellant was deprived of adequate notice of
which offenses to defend against. As we have explained, in a case such as this,
which involves complainant testimony of a continuing course of the same type of
nonspecific, indistinguishable conduct over a long time period, the issue is typically
whether the jury believes the complainant generally or not at all. The State informed
appellant twelve days before trial of its intent to introduce the following as extraneous
offenses:
That the Defendant committed the offense of Indecency with a
Child and Sexual Assault of a Child, felonies, in Denton County, City of
Flower Mound, Texas, and in the City of Argyle, Texas, offense date on
or about May 1, 2002 to May 1, 2006. The victim of the offense was
[Christine]. The defendant contacted her breasts, vagina, and anus
with his hands, mouth, and penis. The defendant also had her . . .
contact his penis with her mouth and hands. These offenses occurred
28
continually during that period. The defendant also continually
complemented [Christine] on her physical appearance. He also
continually discussed matters of a sexual nature with her.
Although Christine testified to incidents occurring in Brownfield, Flower
Mound, and Argyle—some of which must have occurred after she turned
seventeen—at least by the time of the State’s election, appellant’s counsel knew that
the State was proceeding only on those incidents occurring in Denton County after
she had turned fourteen but before she had turned seventeen. State’s Exhibit 13,
which was admitted during Christine’s testimony, is a statement from Christine to
Detective Shane Kizer of the Denton Police Department indicating that appellant
molested her between 800 and 1000 times over a six or seven year period, including
when the family lived in Brownfield, Flower Mound, and Argyle. Accordingly, we do
not believe that there is any risk that appellant was inadequately notified of the exact
nature of the charges against him such that he could not adequately defend himself.
Having analyzed the four election-error factors set forth by the court of criminal
appeals in light of the entire record, we conclude and hold that the trial court’s failure
to include an adequate limiting instruction did not harm appellant13 as to Count I and
Counts III through VIII in the case involving offenses against Christine (the breast
touching, vaginal penetration, and appellant-on-Christine oral sex offenses). See
13
Even if we were to apply the constitutional harm standard applied in
Duffey, we would conclude and hold that the error was harmless beyond a
reasonable doubt as to those counts. See Tex. R. App. 44.2(a); Williams v. State,
273 S.W .3d 200, 225 (Tex. Crim. App. 2008).
29
Dixon, 201 S.W .3d at 735–36. W e overrule appellant’s second and third points
complaining about those offenses.
2. Count II (Appellant’s Making Christine Give Him Oral Sex)
As with the other seven offenses against Christine, an analysis of the first and
second factors weighs against harm as to the allegation regarding appellant’s
making Christine give him oral sex. However, because Christine testified to a
specific incident of oral sex in Argyle, and because W illiam testified that he saw what
appeared to be appellant’s attempting to force Christine to give him oral sex in
Flower Mound, the analysis of the unanimity and notice factors is of more concern
as to this offense than with the other offenses.
The prosecutor did not limit the time frame when asking about the videotaped
oral sex incident in Argyle; instead, he asked Christine, “W as there a time when you
guys lived in Argyle that something happened where he actually videotaped you?”
There is no evidence as to whether Christine had already turned seventeen when
this occurred. So there is a risk that the jury could have convicted for an offense
occurring after Christine had already turned seventeen. Moreover, there is also a
risk that some of the jury members could have convicted for this offense based on
Christine’s general testimony that appellant made her give him oral sex in Flower
Mound, her general testimony that appellant made her give him oral sex in Argyle,
her specific testimony regarding the videotaped incident in Argyle, or W illiam’s
testimony regarding appellant’s appearing to force Christine to his crotch area when
30
she said she wanted a dog. Because the evidence regarding appellant’s making
Christine give him oral sex included a mixture of specific and general events, there
is more of a risk that the jury could have convicted appellant based on different
events, and, thus, that the verdict was not unanimous. Accordingly, we conclude
and hold that appellant was harmed as to Count II only. W e sustain appellant’s
second and third points as to Count II only.
3. Offenses Against Rhonda
Rhonda testified specifically that appellant had vaginal intercourse with her at
least twice in Flower Mound when she was under fourteen, and in seventh grade,
and at least twice when she was fourteen but not yet seventeen. She testified more
generally that it happened a “lot more than four” times and that the same thing
happened after the family moved to Argyle.
For the same reasons set forth above regarding the offenses against
Christine, there is no danger that appellant was improperly subjected to the
introduction of extraneous sexual offenses against Rhonda, nor that the jury
convicted solely on the basis of the admission of those offenses. As for the third and
fourth factors, unanimity and notice, we likewise perceive no risk of harm: Rhonda’s
testimony was straightforward, general as to the commission of the offenses, and
clearly limited to the timeframe during which she was the ages alleged in the
indictment. W e conclude and hold that appellant was not harmed as to Counts I
31
through IV involving offenses alleged against Rhonda. See Dixon, 201 S.W .3d at
735–36. W e overrule his fifth and sixth points.
IV. Enhanced Punishment Range for Section 22.011(f) Convictions
In his seventh and eighth points, appellant contends that the evidence was
legally and factually insufficient to convict him of violating section 22.011(f) as
alleged in Counts V through VIII involving Christine. Alternatively, in his ninth and
tenth points, he claims his punishment under those counts is void because it
exceeded that allowed by law at the time he committed the offenses and, thus, is in
violation of the ex post facto protections of the Texas and United States
Constitutions.
Section 22.011(f) provides that an offense under section 22.011(a) is a second
degree felony unless “the victim was a person whom the actor was prohibited from
marrying or purporting to marry or with whom the actor was prohibited from living
under the appearance of being married under section 25.01,” the bigamy statute; in
the latter case, the offense is a first degree felony. Tex. Penal Code Ann. §
22.011(f). According to appellant, subsection (f) “must be interpreted as requiring
that the State prove a defendant was actually committing ‘bigamy’ as described in
25.01 in order for it to obtain a conviction and allow subsequent punishment as a
first-degree felony.”
W e need not decide the scope of section 22.011(f) or the proof required by it
because it was not yet effective when appellant committed the offenses as alleged
32
and proved at trial. Section 22.011(f) took effect September 1, 2005, after Christine
had already turned seventeen and therefore also after the commission of the
offenses upon which the convictions were based. See Act of May 29, 2005, 79th
Leg., R.S., ch. 268, §§ 4.02, 5.02, 2005 Tex. Gen. Laws 621,714, 720. Thus,
applying section 22.011(f) to increase the punishment for the offenses in Counts V
through VIII—which the State alleged and proved were committed before Christine
turned seventeen—would be an impermissible ex post facto application of that
section. See U.S. Const. art. I, § 10; Tex. Const. art. I, § 16; Collins v. Youngblood,
497 U.S. 37, 45–46 (1990), 110 S. Ct. 2715, 2720–21 (providing that a law that
increases punishment after the commission of an offense is an ex post facto law);
Grimes v. State, 807 S.W .2d 582, 586 (Tex. Crim. App. 1991) (adopting federal ex
post facto analysis for Texas constitutional provision); Ponce v. State, 89 S.W .3d
110, 117–18 (Tex. App.—Corpus Christi 2002, no pet.); see also Lindsey v. State,
672 S.W .2d 892, 894 (Tex. App.—Dallas 1984, pet. ref’d).14 Accordingly, we
conclude and hold that the trial court erred by allowing Counts V through VIII to be
14
The State contends that it also proved Christine’s lack of consent to the
penetrations in Counts V through VIII such that a conviction for sexual assault based
on nonconsensual sex occurring after Christine turned seventeen would have been
permissible; in other words, the State contends that it proved that a section 22.011
offense for each count occurred at a time that the elevated punishment range in
section 22.011(f) was available. See Tex. Penal Code Ann. § 22.011(a)(1)(A). But
the State cannot have it both ways; it elected to proceed on Counts V through VIII
for acts occurring before Christine turned seventeen. Thus, the enhanced
punishment range under section 22.011(f) was not available for those counts.
33
enhanced to first degree felonies under section 22.011(f). W e sustain appellant’s
ninth and tenth points.15
Appellant contends that we must reverse and acquit on these convictions
because the sentence is void. But appellant did not challenge the sufficiency of the
evidence of the penetrations alleged in Counts V through VIII, and section 22.011(f)
does not define a new offense, only an elevated range of punishment. The
appropriate remedy for a sentence outside the range of punishment for an offense
is a remand for a new trial on punishment alone. See Tex. Code Crim. Proc. Ann.
art. 44.29(b) (Vernon Supp. 2009); State v. Marroquin, 253 S.W .3d 783, 785 (Tex.
App.—Amarillo 2007, no pet.); Fairrow v. State, 112 S.W .3d 288, 295 (Tex.
App.—Dallas 2003, no pet.). Thus, we must remand these four counts for a new trial
on punishment.
V. Continuance
In his tenth and eleventh points, appellant argues that the trial court abused
its discretion by denying his written motion for continuance and by permitting the
introduction of extraneous offenses. Included in his eleventh point is a complaint
that the State failed to give him reasonable prior notice of its intent to introduce
extraneous offenses. Appellant complains about two extraneous offenses
15
Because appellant’s ninth and tenth points are dispositive, we need not
address appellant’s seventh and eighth points. See Tex. R. App. P. 47.1; State v.
Iduarte, 232 S.W .3d 133, 140 (Tex. App.—Fort W orth 2007), aff’d, 268 S.W .3d 544
(Tex. Crim. App. 2008).
34
specifically: appellant’s assault of Christine and her half-sister by ramming their car
after he had chased them to Lubbock—which was admitted at guilt-innocence—and
appellant’s sexually assaulting one of his daughter’s friends when the family lived in
Brownfield.
Appellant filed a written motion for continuance in cause number F-2008-
01081-B only, the case involving offenses against Rhonda. He argued that the
State’s providing notice of certain extraneous offenses, including the assault of his
daughter’s friend, on October 1, 2008—two days before trial was scheduled to
start—was unreasonable. The State had provided notice of the Lubbock assault on
September 25, 2008; thus, appellant’s motion for continuance did not apply to that
extraneous offense.
Under the Texas Code of Criminal Procedure, a criminal action may be
continued on the sworn, written motion of a defendant, so long as sufficient cause
is fully set forth in the motion. Tex. Code Crim. Proc. Ann. art. 29.03, 29.08 (Vernon
2006); Dotson v. State, 146 S.W .3d 285, 297 (Tex. App.—Fort W orth 2004, pet.
ref’d). W hether to deny a motion for continuance is within the trial court’s discretion,
and we will not reverse its decision on appeal unless the appellant shows that the
court abused its discretion. Janecka v. State, 937 S.W .2d 456, 468 (Tex. Crim. App.
1996), cert. denied, 522 U.S. 825 (1997); Dotson, 146 S.W .3d at 297. To establish
an abuse of discretion, the defendant must show that he was actually prejudiced by
counsel’s inadequate preparation time. Janecka, 937 S.W .2d at 468; Dotson, 146
35
S.W .3d at 297. Specific prejudice may include unfair surprise, an inability to
effectively cross-examine the State’s witnesses, or the inability to adduce crucial
testimony that could have been given by potential witnesses. Janecka, 937 S.W .2d
at 468; Dotson, 146 S.W .3d at 297. But a mere statement that counsel did not have
enough time to prepare an adequate defense does not demonstrate prejudice.
Janecka, 937 S.W .2d at 468; Dotson, 146 S.W .3d at 297.
Here, appellant contends that he was “unable to investigate this allegation and
produce any evidence to contradict” the witness’s testimony. He also claims that the
State emphasized this evidence by calling him a serial molester during closing
argument at punishment.
Appellant’s claim that he was unable to investigate and produce any evidence
to contradict the witness’s testimony is general; it does not point to any specific
prejudice and merely posits that appellant did not have time to prepare an adequate
defense. The State told the trial court at a pretrial hearing on October 6, 2008 that
appellant was made aware of this incident via a videotaped interview of Heather,
which the State had allowed appellant access to; the prosecutor also told the trial
court,
I also know that the witnesses who are listed in the 404(b) notice,
prior to me filing it, when we made contact with them, they had told us
that an investigator was looking for them, that they had gotten phone
calls, that their friends and family had gotten phone calls, and it was not
our investigator. So that would logically lead us to believe that their
investigator was seeking those people and were actively looking for
them before we filed the responses.
36
So it was actually in writing on those days [October 1], but it’s my
belief that the defense knew of these people and had been actively
searching for them prior to the actual notice given.
The State did not mention this witness in particular, but appellant acknowledged that
Heather mentioned the incident in her statement, which he had reviewed, and that
he knew the first name of the witness and that she was a friend of one of appellant’s
daughters (Christine and Rhonda’s half-sister), but that he did not know of the
witness’s last name until October 1 when the State gave its notice. The witness
testified that the first time the State had talked to her was October 1, 2008, the
W ednesday of the week before trial, which started Monday, October 6, 2008.
Punishment began on Thursday, October 9, 2008.
W e conclude and hold that the trial court did not abuse its discretion by
denying the continuance because appellant failed to show specific prejudice. See
Janecka, 937 S.W .2d at 468; Dotson, 146 S.W .3d at 297. Moreover, any error
would have been harmless in light of the extensive evidence regarding appellant’s
repeated, “serial” sexual abuse of his own daughters, which is far more inflammatory
than the single sexual assault testified to by the witness. See Montgomery v. State,
810 S.W .2d 372, 397 (Tex. Crim. App. 1991) (op. on reh’g) (noting that sexual
misconduct against children is inflammatory in general). W e overrule appellant’s
tenth point.
Appellant’s eleventh point complains that he did not receive reasonable prior
notice of the State’s intent to introduce evidence of the Lubbock assault at guilt-
37
innocence. He filed his request for the State to give such prior notice in cause
number F-2007–2107-B—the case involving offenses against Christine—only.
Appellant did not object to the introduction of evidence of this extraneous offense on
the same grounds at trial. Instead, he urged that the trial court should first hold a
hearing on the admissibility of the offense pursuant to a pretrial motion in limine; he
also objected on rule 403 grounds. Accordingly, appellant has failed to preserve this
point for our review and we overrule it. See Pena v. State, 285 S.W .3d 459, 464
(Tex. Crim. App. 2009); Clarke v. State, 270 S.W .3d 573, 580–83 (Tex. Crim. App.
2008).
VI. Exclusion of Testimony
In his last two points, appellant complains about the trial court’s exclusion of
testimony.
W e review a trial court’s evidentiary rulings for abuse of discretion.
Weatherred v. State, 15 S.W .3d 540, 542 (Tex. Crim. App. 2000); Montgomery, 810
S.W .2d at 391. A trial court abuses its discretion only when the decision lies outside
the zone of reasonable disagreement. Green v. State, 934 S.W .2d 92, 101–02 (Tex.
Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Wenger v. State, 292 S.W .3d
191, 202 (Tex. App.—Fort W orth 2009, no pet.).
In his twelfth point, appellant challenges the trial court’s exclusion of testimony
from a CPS investigator who observed Rhonda’s interview at the Child Advocacy
Center. Appellant made an offer of proof in which the CPS investigator testified in
38
response to questioning from appellant’s counsel that she observed Rhonda’s body
language and answers to questions during the interview; after watching the
interview, in which Rhonda denied having been sexually abused by appellant, the
investigator ruled out sexual abuse and closed the case. Appellant offered this
testimony to rebut the testimony of Detective Kizer—who participated in the
interview—that in his opinion, based on Rhonda’s body language and gestures
during the interview, she was lying when she denied that appellant had done
anything to her.
W hen the State cross-examined the CPS investigator, she admitted that if the
child does not make an outcry, then CPS has no reason to believe that sexual abuse
has occurred. The State asked her the following:
Q. Fair to say that you weren’t making any kind of legal
determination as to whether something happened or didn’t happen;
simply based on the victim saying it did not happen, you closed your
case?
A. Right, because we had no evidence that anything had
happened up until that point.
Later, on redirect, she testified again as follows:
Q. So your determination wasn’t simply based upon her
denial?
A. W ell, any time that a child does not make an outcry, unless
there’s other people that that child has made an outcry to that we get
statements from and things like that, then we have to rule a case out
because the child didn’t say that anything happened to him or her.
39
Q. But your recommendation as to this finding was based on
watching the interview, listening to the questions and the answers,
watching her body language, talking with Detective Kizer, and talking
with Ms. Smith, correct?
A. Yes.
The investigator never definitively answered whether she would have been
able to keep Rhonda’s case open if she had determined that Rhonda was lying when
she denied that appellant had sexually abused her. The investigator merely stated
that she had no evidence at that point on which to keep a CPS case open. Appellant
wanted to rebut Detective Kizer’s testimony that Rhonda was not being truthful when
she denied the sexual abuse in the interview. But as the court stated regarding the
investigator’s testimony: “what she said was, when somebody says nothing
happened to me and we don’t have anybody else that she told something happened,
then we don’t have anything and we can’t do anything. . . . W e have no collateral
sources that the girl told anything differently to.” Thus, the investigator’s testimony
did not directly contradict Detective Kizer’s testimony.16 And as the trial court
pointed out in excluding the testimony, Rhonda had already testified before the jury
and admitted that she initially denied the sexual abuse but that she was lying when
she did so. The jury was in a position to see her testify in person and make a
credibility determination at that time. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert.
16
Additionally, Detective Kizer participated directly in the interview with
Rhonda; the CPS investigator watched behind a two-way mirror.
40
denied, 129 S. Ct. 2075 (2009). Accordingly, we conclude and hold that the trial
court did not abuse its discretion by excluding the evidence. See Tex. R. Evid. 401;
Smith v. State, 65 S.W .3d 332, 340 (Tex. App.—W aco 2001, no pet.). W e overrule
appellant’s twelfth point.
In his thirteenth point, appellant contends that the trial court improperly
refused to allow him to question Rhonda about her having been hospitalized for
“cutting” behavior when the family lived in Flower Mound and about appellant’s
having signed a waiver allowing her to speak freely with a psychologist about why
she was engaging in cutting. The trial court allowed appellant to make a bill, in
which Rhonda testified that when she was fourteen years old and in eighth grade,
her basketball coach found out she was cutting herself and told appellant and the
school counselor. Rhonda was hospitalized for about seven to eight days and was
treated by a psychologist for some time afterwards. Rhonda agreed that appellant
signed a “waiver so that [she] could have freedom of talking with [the psychologist]
about why [she was] cutting” herself and that the waiver said the psychologist “did
not have to disclose anything that [Rhonda] told her.”
Appellant argued to the trial court that this testimony was relevant because
part of the State’s case here is the idea that my client had some type
of ridiculous control of his family. And if - - it is the argument of the
defense that if he did, he would never have agreed to sign a waiver not
knowing what his daughter was going to tell . . . the psychologist what
the underlying basis was for cutting herself.
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Of course, I think at this point that the investigator on the case
believed it was because he believes that sexual abuse was going on at
the time, and this is the type of stuff that we know kids do when they’re
going through this type of thing, other things too. But, again, I think it
takes away an argument that I have showing my client’s lack of control
of the situation. I think that is powerful evidence that needs to be
presented to this jury in our closing argument.
The State objected to the admission of this testimony on relevance grounds and
under rule 404.
W ithout any evidence as to why Rhonda was cutting, this evidence is of only
minimal relevance and could only lead to speculation. Appellant could have been
willing to sign the waiver for any number of reasons: because Rhonda was cutting
for reasons other than sexual abuse—which does not bear upon the credibility of her
testimony that such abuse did occur; because Rhonda was so scared of appellant
that he was confident she would deny any sexual abuse to the psychologist—as she
initially did to the police, even in light of Christine’s allegations; or for other reasons.
W e conclude and hold that the trial court did not abuse its discretion by excluding
this testimony, and we therefore overrule appellant’s thirteenth point. See Tex. R.
Evid. 401; Woods v. State, 306 S.W .3d 905, 909–10 (Tex. App.—Beaumont 2010,
no pet.).
Conclusion
Having sustained appellant’s second and third points as to Count II only in
cause number F-2007-2107-B (the case involving offenses against Christine), we
reverse and remand the conviction and sentence for that count for a new trial.
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Having also sustained appellant’s ninth point as to Counts V through VIII in cause
number F-2007-2107-B, we reverse the sentences for all of those counts and
remand for a new trial on punishment as to those counts only. Having overruled
appellant’s remaining points, we affirm the convictions and sentences as to Counts
I, III, and IV in cause number F-2007-2107-B and Counts I through IV in cause
number F-2008-1081-B (the case involving offenses against Rhonda).
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 27, 2010
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