PD-1231-15 PD-1231-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/17/2015 8:06:42 PM
Accepted 9/22/2015 11:44:58 AM
ABEL ACOSTA
NO. _____________ PD CLERK
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
JACOY NIXON
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
_________________________________________________________
Petition in Cause No. 12-05-05609-CR from the
TH
9 District Court of Montgomery County, Texas and
the Court of Appeals for the
14TH District of Texas
_________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
September 22, 2015 SBOT # 24072501
ATTORNEY FOR PETITIONER
IDENTITIES OF PARTIES AND COUNSEL
PETITIONER: JACOY NIXON
PRESIDING JUDGE: HON. KELLY CASE
9th District Court
Montgomery County Courthouse
207 West Phillips, Suite 306
Conroe, Texas 77301
(936) 539-7866
PROSECUTORS: MS. ROCHELLE L. GUITON
MS. NANCY HEBERT
Assistant District Attorney
Montgomery Co. District Attorney’s Office
207 West Phillips, 2nd floor
Conroe, Texas 77301
(936) 539-7800
TRIAL COUNSEL: MR. JARROD L. WALKER
300 West Davis St, Ste. 450
Conroe, Texas 77301
(936) 539-3335
APPELLATE COUNSEL: MR. TOM ABBATE
440 Louisiana, Ste 200
Houston, Texas 77002
(713)-223-0404
APPELLEE COUNSEL: MR. WILLIAM J. DELMORE III
Assistant District Attorney
Montgomery Co. District Attorney’s Office
207 West Phillips, 2nd floor
Conroe, Texas 77301
(936) 539-7800
2
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2
INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6
STATEMENT OF THE CASE....................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY ............................................................................. 6
QUESTIONS PRESENTED FOR REVIEW ................................................................................. 7
REASON FOR REVIEW ............................................................................................................... 7
REASON FOR REVIEW ............................................................................................................. 10
PRAYER FOR RELIEF ............................................................................................................... 16
CERTIFICATE OF SERVICE ..................................................................................................... 17
CERTIFICATE OF COMPLIANCE ............................................................................................ 17
APPENDIX ................................................................................................................................... 18
3
INDEX OF AUTHORITIES
Cases
Berotte v. State, 992 S.W.2d 13 (Tex. App.--Houston [1st Dist.] 1997) ........................................ 9
Broderick v. State, 89 S.W.3d 696 (Tex. App.—Houston [1st Dist.] 2002) ................................ 12
Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001) ......................................... 12
Clark v. State, 659 S.W.2d 53 (Tex. App.--Houston [14th Dist.] 1983) .................................. 8, 10
De Los Santos v. State, 219 S.W.3d 71 (Tex. App.--San Antonio 2006) ....................................... 9
Dufrene v. State, 853 S.W.2d 86 (Tex.App. —Houston [14 Dist.] 1993) .............................. 7, 8, 9
Duran v. State, 163 S.W.3d 253 (Tex. App.—Fort Worth 2005)........................................... 13, 16
Fields v. State, 500 S.W.2d 500 (Tex. Crim. App. 1973) ............................................................... 7
Fox v. State, 175 S.W.3d 475 (Tex. App.—Texarkana 2005) ........................................................ 8
Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) ....................................................... 12, 13
Hanson v. State, 180 S.W.3d 726 (Tex. App.—Waco 2005) ....................................................... 12
Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004) ..................................................... 16
Hogan v. State, __ S.W.3d __, 2013 WL 5728159 (Tex. App.--Houston [14th Dist.] 2013) .... 7, 9
Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998) ..................................................... 13, 15
King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) ........................................................... 13, 15
Long v. State, 770 S.W.2d 27 (Tex. App.--Houston [14th Dist.] 1989) ......................................... 9
Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990)............................................................... 12
Michell v. State, 381 S.W.3d 554 (Tex. App.— Eastland 2012) .................................................. 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................. 8, 10
Moore v. State, 233 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2007) ...................................... 11
Nino v. State, 223 S.W.3d 749 (Tex. App.—Houston [14th Dist.] 2007) .................................... 13
Nixon v. State, 14-14-00534-CR (Tex. App.--Houston [14th Dist.] 2014) ...................... 10, 15, 16
Norris v. State, 788 S.W.2d 65 (Tex. App.—Dallas 1990) .................................................... 12, 15
Prince v. State, 192 S.W.3d 49 (Tex. App.--Houston [14th Dist.] 2006)....................................... 8
Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011) ........................................ 11, 12, 14, 15
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) ...................................................... 13, 15
Statutes
Tex. Code Crim. Proc. art. 38.072 .................................................................................... 10, 11, 13
Rules
Tex. R. App. P. 33.1...................................................................................................................... 13
Tex. R. App. P. 44.2................................................................................................................ 13, 15
Tex. R. Evid. 601 ............................................................................................................................ 7
Tex. R. Evid. 802 .......................................................................................................................... 10
Tex. R. Evid. 803 .......................................................................................................................... 10
4
NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
JACOY NIXON
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
_________________________________________________________
Petition in Cause No. 12-05-05609-CR from the
TH
9 District Court of Montgomery County, Texas and
the Court of Appeals for the
14TH District of Texas
__________________________________________________________
PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS
Jacoy Nixon, petitions the Court to review the judgment affirming
his conviction for aggravated sexual assault of a child under six
in Cause No. 12-05-05609-CR
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist to resolve whether the trial court abused its
discretion by finding the complainant competent to testify and in admitting the
outcry statement under Article 38.072 of the Texas Code of Criminal Procedure.
STATEMENT OF THE CASE
This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION
BY JURY finding JACOY NIXON (hereinafter, “Appellant,”), GUILTY of the
charge AGGRAVATED SEXUAL ASSAULT OF A CHILD UNDER AGE 6 and
sentencing him to 41 YEARS TDCJ in Cause No. 12-05-05609-CR. (CLRK. REC.
- 220). On May 22, 2012, a grand jury indicted Appellant for the felony offense of
“intentionally or knowingly cause the penetration of the mouth of L.H., a child who
was then and there younger than 14 years of age, by the defendant’s sexual organ.”
(CLRK. REC. – 10). Appellant filed a NOTICE OF APPEAL on June 25, 2014.
(CLRK. REC. – 235).
STATEMENT OF PROCEDURAL HISTORY
The court of appeals rendered its decision affirming the petitioner’s
conviction on AUGUST 18, 2015. The Petitioner did not file a motion for rehearing.
This petition was then filed with the clerk of the court of appeals within 30 days after
the ruling.
6
QUESTIONS PRESENTED FOR REVIEW
Did the Trial Court abuse its discretion in finding that the
complainant was competent to testify in this case?
REASON FOR REVIEW
As a general rule, a witness is presumed to be competent to testify. Tex. R.
Evid. 601. A child is not competent to testify when, after an examination by the trial
court, the child does not appear "to possess sufficient intellect to relate transactions
with respect to which [the child is] interrogated." Tex. R. Evid. 601(a)(2); Hogan v.
State, __ S.W.3d __, 2013 WL 5728159, at *1 (Tex. App.--Houston [14th Dist.]
2013, pet. filed).
When a party challenges the competency of a child witness, the trial court will
consider whether the child witness possesses (1) the ability to intelligently observe
the events in question at the time of the occurrence, (2) the capacity to recollect the
events, and (3) the capacity to narrate the events. See Hogan, __ S.W.3d at __, 2013
WL 5728159, at *1. The third element involves the ability to understand the moral
responsibility to tell the truth, to understand the questions posed, and to frame
intelligent answers. See Id. Although the child need not understand the "obligation
of the oath," the trial court must impress the child with the duty to be truthful. See
Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App. —Houston [14 Dist.] 1993). There
is no precise age under which a child is deemed incompetent to testify. See Fields v.
State, 500 S.W.2d 500, 502-03 (Tex. Crim. App. 1973); Clark v. State, 659 S.W.2d
7
53, 55 (Tex. App.--Houston [14th Dist.] 1983, no pet.).
To preserve error on Confrontation Clause grounds, an objection must
be made at trial as soon as the basis for the objection becomes apparent. Prince v.
State, 192 S.W.3d 49, 58 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd). A trial
court's determination of whether a child witness is competent to testify will not be
disturbed on appeal absent an abuse of discretion. Dufrene, 853 S.W.2d at 88. An
appellate court must review the child's responses to qualification questions as well
as the child's entire testimony to determine whether the trial court's ruling on
competency constituted an abuse of discretion. Fox v. State, 175 S.W.3d 475, 481
(Tex. App.—Texarkana 2005, pet. ref'd). A trial court does not abuse its discretion
if its ruling was within the zone of reasonable disagreement. See Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).
Appellant preserved the issue of competency on several occasions by filing a
motion in limine, obtaining a ruling thereon, objecting to L.H.’s testimony on
confrontational grounds during the 601 review, and finally, reurging the objection
in his motion for a directed verdict. The error was therefore properly preserved.
Prince, 192 S.W.3d at 58.
The complainant’s answers and testimony in this case showed extreme
conflict and confusion, and overall her testimony indicated insufficient accuracy in
her recollection. See Berotte v. State, 992 S.W.2d 13, 17 (Tex. App.--Houston [1st
8
Dist.] 1997, pet. ref'd); Long v. State, 770 S.W.2d 27, 29 (Tex. App.--Houston [14th
Dist.] 1989), rev'd on other grounds, 800 S.W.2d 545 (Tex. Crim. App. 1990).
Appellant argues that the level of inconsistency in the complainant’s responses and
testimony about the events goes to her competency as opposed to her credibility. See
De Los Santos v. State, 219 S.W.3d 71, 80-81 (Tex. App.--San Antonio 2006, no
pet.).
Appellant points out that L.H. had difficulty remembering him and his step-
mother, Chitra Johnson. When asked about the alleged offense during the
examination and her testimony, she repeatedly stated that she did not remember, and
gave conflicting answers when asked about the events in question. Finally, Appellant
points out that the complaining witness had difficulty describing even recent events,
as she initially answered in the negative when asked if she remembered discussing
the events with the judge, which had occurred twice within the previous twenty-four
hour period. (RR.IV – 55-56).
In light of the complainant's answers to the qualification questions and her
testimony as a whole during the proceedings, the record demonstrates that she did
not possess the ability to intelligently observe the events in question at the time of
the occurrence, was not capable of recollecting the events, and was not capable of
narrating the events. See Hogan, __ S.W.3d at __, 2013 WL 5728159, at *1-5;
Dufrene, 853 S.W.2d at 88-89; Long, 770 S.W.2d at 29; Clark, 659 S.W.2d at 54-
9
55. Finally, because the record demonstrates that the complainant did not possess
the requisite capacity to be competent to testify, the trial court’s decision to admit
that testimony is outside the zone of reasonable disagreement and is therefore an
abuse of its discretion. See Montgomery, 810 S.W.2d at 391.
The Court of Appeals, however, held that the record as a whole reflected that
the complainant knew the difference between a truth and a lie, understood questions,
and responded intelligently. Nixon v. State, 14-14-00534-CR, at *6 (Tex. App.--
Houston [14th Dist.] 2014). Further, the court opined that “[a]lthough some of the
complainant’s responses were inconsistent, overall she responded sufficiently and
was able to convey to the jury the details of what occurred.” Id. Therefore, the court
held that the trial court did not abuse its discretion by finding that the complainant
was competent to testify. Id.
Did the Trial Court abuse its discretion under Article 38.072 of the
Texas Code of Criminal Procedure?
REASON FOR REVIEW
Hearsay statements are generally inadmissible unless permitted by statute or
evidentiary rule. See Tex. R. Evid. 802, 803. Article 38.072 provides an exception
to the hearsay rule by allowing evidence of an "outcry statement" by a child
complainant younger than fourteen years old. See Tex. Code Crim. Proc. art. 38.072,
§ 2(a). When a defendant is charged with certain offenses against a child under the
age of fourteen, article 38.072 allows into evidence the complainant's out-of-court
10
statement so long as that statement, is reliable, describes the alleged offense, and is
offered into evidence by the first adult to whom the child made a statement about
the offense. Id; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
Article 38.072 has several requirements that must be met before an outcry
witness may testify. See Tex. Crim. Proc. art. 38.072. At least fourteen days before
trial, the State must notify the defendant of its intention to call an outcry witness and
must provide the name of that witness. Id. The State must also provide a summary
of the outcry statement that will be offered into evidence. Id. art. 38.072, §
2(b)(1)(C). The victim must either testify or be available to testify at the proceeding
in court or in any other manner provided by law. Id. art. 38, 072, § 2(b)(3). And
finally, outside the presence of the jury, the trial court must hold a hearing to
determine whether the victim's out-of-court statement is "reliable" based on the
"time, content, and circumstances of the statement." Id. art. 38.072, § 2(b)(2). The
statute is mandatory, and the trial court commits error if it overrules a hearsay
objection without first conducting the hearing. Moore v. State, 233 S.W.3d 32, 35
(Tex. App.—Houston [1st Dist.] 2007, no pet).
“To whom the child made a statement about the offense." Has been construed
to mean that the proper outcry witness is the first adult person "to whom the child
makes a statement that in some discernible manner describes the alleged offense …
[T]he statement must be more than words which give a general allusion that
11
something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88,
92 (Tex. Crim. App. 1990); see Castelan v. State, 54 S.W.3d 469, 475 (Tex. App.—
Corpus Christi 2001, no pet.). In other words, the proper outcry witness is the first
adult, other than the accused, to whom the complainant told the "how, when, and
where" of the offense. Hanson v. State, 180 S.W.3d 726, 729 (Tex. App.—Waco
2005, no pet.).
Further, the statute charges the trial court with determining the reliability
based on "the time, content, and circumstances of the statement;" however, it does
not charge the trial court with determining the reliability of the statement based on
the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488. The phrase,
"time, content, and circumstances" refers to the time the child's statement was made
to the outcry witness, the content of the child's statement, and the circumstances
surrounding the making of that statement. Broderick v. State, 89 S.W.3d 696, 699
(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Although courts have enumerated
factors that may assist in ascertaining the reliability of an outcry statement, the focus
of the inquiry must remain upon the outcry statement, not the abuse itself. Norris v.
State, 788 S.W.2d 65 (Tex. App.—Dallas 1990, pet. ref'd).
A general hearsay objection is sufficient to preserve a claim under article
38.072. See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). However,
an appellant must also object on the basis of reliability to preserve a claim that the
12
statement fails that portion of the test under 38.072. See Tex. R. App. P. 33.1(a)(1);
Duran v. State, 163 S.W.3d 253, 256 (Tex. App.—Fort Worth 2005, no pet.).
Once such an objection is made, a trial court's determination that an outcry
statement is admissible under article 38.072 will not be overturned absent an abuse
of discretion. Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (citing Garcia, 792 S.W.2d at 92); Michell v. State, 381 S.W.3d 554,
558 (Tex. App.— Eastland 2012, no pet.).
Finally, reversal of a conviction due to the erroneous admission of hearsay
testimony must follow if it is determined that the admission affected an appellant's
substantial rights. See Tex. R. App. P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 592
(Tex. Crim. App. 2008). A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury's verdict. King
v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A conviction should not be
overturned for such error if this Court, after examining the record as a whole, has
fair assurance that the error did not influence the jury, or had but a slight effect.
Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).
As demonstrated above, the complainant in this case was not competent to
testify due to her inability to intelligently observe the events in question, to recollect
the events, and to narrate the events. She was therefore not available to testify. See
Tex. Crim. Proc. art. 38.072, § 2(b)(3). Because the requirements of 38.072 are
13
mandatory, it was clearly an abuse of discretion for the trial court to admit the outcry
statement through the testimony of the complainant’s mother. Appellant properly
preserved this issue by pointing out that to the trial court that the statute required that
the complainant be available to testify before the outcry statement could be
admissible. (RR.III – 108).
Further, even if the complainant was competent to testify, the trial court erred
in finding that the statement was reliable based on the “time, content, and
circumstances.” As stated above, it is reliability of the statement itself that is in
question, and not the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-
488. This issue was also properly preserved as defense counsel objected to the
admissibility of the outcry statements during the multiple bench hearings.
In this case, the trial court heard the testimony of the outcry witness herself,
as well as the complainant, outside the presence of the jury for the purposes of ruling
on the admissibility thereof. However, the trial court did not examine the
complainant regarding the circumstances of the outcry statement itself during either
38.072 examination before finding her credible and reliable. (RR.III – 108-109).
Because the focus of the inquiry must remain upon the outcry statement, and not the
abuse itself, the trial court abused its discretion by finding the statement to be reliable
as it had not examined the complainant regarding the statement itself. Norris, 788
14
S.W.2d 65. Instead, the trial court determined the reliability of the statement based
on the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488.
Finally, reversal of this conviction due to the erroneous admission of hearsay
testimony must follow as it is clear that the admission affected the Appellant's
substantial rights. See Tex. R. App. P. 44.2(b); Taylor, 268 S.W.3d at 592. The error
in this case had a substantial and injurious effect or influence in determining the
jury's verdict, due to the fact that if the outcry statement had been excluded because
to the complainant was not available to testify, or because the statement itself was
unreliable, the evidence in this case would have been legally insufficient to support
the conviction. King, 953 S.W.2d at 271. Because a review of the record as a whole
clearly demonstrates that the error did in fact heavily influence the jury, reversal
should follow. Johnson, 967 S.W.2d at 417.
The Court of Appeals, however, held that the appellant had failed to object to
the outcry statement’s reliability based on the circumstances, and therefore did not
properly preserve the error for review. Nixon, 14-14-00534-CR, at *10. According
to the court of appeals, appellant had an opportunity to request that the trial court
question the complainant regarding the circumstances in which she first outcried to
her mother, but instead chose to object to the hearing based on the complainant’s
competency under Rule 601. Id. at 9.
Moreover, the court of appeals did not find an objection, from appellant, to
15
the reliability of the outcry statement based on the circumstances surrounding the
statement, nor did it believe that the appellant’s grounds for objection were so
obvious that the court would be put on notice. Id. Finally, the court of appeals noted
that the trial court gave both parties an opportunity to suggest questions to determine
the reliability of the outcry statement during the hearing, and that “Appellant’s only
proffered questions related to the complainant’s ability to recollect, which is an
element of Rule 601.” Id. (citing Duran, 163 S.W.3d at 256; Heidelberg v. State,
144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004)).
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR
DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the
question of whether the evidence against the Petitioner was legally sufficient to
support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
___________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
ATTORNEY FOR PETITIONER
16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PETITION FOR
DISCRETIONARY REVIEW was delivered to the MONTGOMERY County
District Attorney’s Office by CERTIFIED MAIL on SEPTEMBER 18, 2015
___________________________
TOM ABBATE
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 3,399 words contained in this document.
___________________________
TOM ABBATE
17
APPENDIX
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Nixon, Jacoy
Combined Opinion