Simon v. State

EVANS, Chief Justice.

A jury convicted appellants, Armando Simon and his wife Angela H. Simon, of sexual assault of a child. The jury assessed Armando Simon’s punishment at nine years confinement and Angela Simon’s punishment at three years confinement, probated for five years. Both appellants bring this appeal from their respective convictions. We affirm both convictions.

Armando Simon does not challenge the sufficiency of the evidence to support his conviction. But Angela Simon does contest the sufficiency of the evidence, arguing that there is insufficient evidence to show that she, while “acting with intent to promote or assist the commission of the offense,” solicited, encouraged, directed, aided, or attempted to aid either Armando or the complainant to commit the offense. See Tex.Penal Code Ann. sec. 7.02(a)(2) (Vernon 1974).

Angela Simon first contends that there is insufficient evidence to prove that she committed any “acts” of culpable conduct and second, that there is insufficient evidence, under the law of parties, to show that culpable intent attached to the proscribed act at the time the act was per-, formed. In support of these arguments, she cites Herring v. State, 659 S.W.2d 391, 392 (Tex.Crim.App.1983), which involved a conviction for public lewdness based upon the defendant’s “act” in allowing his genitals to be touched by complainant. In that case, the Court of Criminal Appeals reversed the conviction, holding that the State failed to meet its statutory obligation to prove an affirmative act of touching. See Tex.Penal Code Ann. sec. 6.01 (Vernon 1974 and Supp.1987).

In considering the sufficiency of the evidence, we are required to view the record in the light most favorable to the verdict, and we must sustain the conviction if we conclude that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Sutherlin v. *320State, 682 S.W.2d 546, 549 (Tex.Crim.App.1984). Applying this standard of review, we hold that the jury could reasonably have decided beyond a reasonable doubt that Angela Simon actively encouraged sexual contact between the complainant and the appellant’s husband, Armando Simon.

Appellants resided in Angleton, Texas, where Armando Simon was employed as a psychologist with the Texas Department of Corrections. In February 1983, the complainant, then 15 years old, was introduced to the Simons by mutual friends who shared an interest in a game called “Dungeons and Dragons.” The complainant thereafter often babysat at the Simons’ and joined the Simons’ social circle, whose members ranged in age from middle teens to early twenties, except Armando, who was in his early thirties. The group gathered frequently to play “Dungeons and Dragons” and other games, and also met to go swimming, crabbing, and on shopping trips. In May 1983, some of the group, on several occasions, attended “The Rocky Horror Picture Show” movie, a satire on horror movies shown at Houston theaters at midnight on weekends. When the group went swimming, a certain amount of “horseplay” generally took place in which the males, including Armando, threatened removal of the females’ bathing suit tops and tube tops. In the summer of 1983, the Simons moved to another apartment in An-gleton, and in the course of that move, some of the family photograph albums, which contained nude pictures, were displayed to the complainant and another member of the group. After that time, Armando’s attentions to the complainant began to take on a more distinctly sexual character, starting with kissing and petting. About that same time, Angela Simon told the complainant that she, Angela, had an “open marriage” and that she wished to give Armando a “gift” of a virgin. She also commented about Armando’s sexual activities and prowess.

There was testimony that Angela engaged in a continuing course of conversation with the complainant involving sexuality. On one occasion, after the trio engaged in a “strip blackjack” game, Angela openly invited the complainant to engage in sexual contact with Armando, placed the complainant’s hand on Armando's penis, and then left the room. After Angela left the room, Armando continued to fondle the complainant until he reached a sexual climax; On a subsequent occasion, Armando performed cunnilingus on the complainant while the two were in an automobile, and during that episode, Armando was unable to achieve an erection. After returning to the Simons’ apartment, Angela massaged Armando to an erection, and invited the complainant to have intercourse with him. When the complainant refused this invitation, the two Simons left the room and engaged in an argument. Angela then returned and informed the complainant that she would have to make a decision about having intercourse with Armando.

About two months later, in November 1983, Armando and the complainant engaged in their first act of sexual intercourse. Thereafter, Armando and the complainant engaged in intercourse on some 17 to 20 occasions at various locations. The last occasion was on June 6, 1984, the date of the offense upon which both convictions are based. Angela Simon was not present on any of the occasions when Armando had intercourse with the complainant.

There was testimony that tended to show that Angela Simon continuously discussed sexual activities with the complainant, particularly in respect to the complainant’s sexual involvement with Armando Simon, and that Angela actively encouraged the complainant to have a sexual relationship with Armando. There was also testimony from another witness, an acquaintance of the Simons, that the Simons had admitted Armando’s sexual relationship with the complainant, and that Angela later told the witness that the complainant was a “gift” to Armando.

Although Angela Simon denied any knowledge of an affair between her husband and the complainant and denied that the three had participated in the sexual activities described by the complainant, the jury was not bound to accept her testimo*321ny. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence is sufficient to prove affirmative conduct on the part of Angela Simon that constitutes a culpable act of aiding in the commission of the offense. Moreover, the evidence is sufficient to support the inference of her participation in the offense as a party. See Freeman v. State, 654 S.W.2d 450, 453-54 (Tex.Crim.App.1983); Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.Crim.App.1976). We also conclude that the testimony supports an inference that the culpable intent was attached to the proscribed act at the time the conduct was performed. See Ely v. State, 582 S.W.2d 416, 420 (Tex.Crim.App.1979); Tex.Penal Code Ann. sec. 7.02(a)(2).

Tex.Penal Code Ann. sec. 6.03(a) (Vernon 1974) provides:

A person acts intentionally, or with intent, with respect to the nature of his conduct or as a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Although Angela Simon was not present on the date of the act of the sexual intercourse for which both appellants were found guilty, the testimony supports an inference that the particular act of intercourse occurred, as did the preceding series of sexual contact, as a result of her intentional course of conduct and her conscious objective and desire to have the complainant engage in sexual intercourse with her husband. Thus, the jury was justified in concluding that Angela Simon had culpable intent that attached to the act of intercourse for which she and her husband were charged with the offense of sexual assault of a child.

We accordingly overrule points of error 25 and 26 of appellant Angela Simon.

We next consider the contentions advanced by both appellants, Armando and Angela Simon, that the trial court abused its discretion in denying their motions for severance.

Tex.Code Crim.P. art. 36.09 (Vernon 1981) provides, insofar as applicable here, that when two or more defendants have been jointly indicted for the same offense or an offense growing out of the same transaction, they may, in the discretion of the court, be tried jointly, and that either defendant may testify for the other or on behalf of the State, provided, “that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court ... that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other_” (Emphasis added.)

Under Armando Simon’s points of error nine and ten, he contends that the trial court abused its discretion in denying his motion to sever, claiming that his defense was so antagonistic and prejudicial to Angela Simon’s defense that a severance should have been granted. Particularly, he complains that “as the evidence developed,” Angela Simon felt it necessary to take the stand and produce her diary, which had been excluded by the court in a pretrial suppression hearing. He argues that because the hearsay statements recorded in her diary tended to incriminate him, this made his wife a witness against him. He asserts that the trial court was aware, before the trial even started, that the diary might be an issue in the case and that the parties had asked to be tried separately, both before and during trial.

Angela Simon’s points of error two, seven, eight, and sixteen similarly contend that the trial court abused its discretion in overruling her motion to sever, arguing that certain evidence admissible against her husband Armando, particularly photographs of her husband and nude women, made their defenses antagonistic to one another.

Both of the appellants’ motions for severance are contained in the transcript. But neither the transcript nor the statement of facts contain any record of a pre-trial hearing on either motion. Thus, the appellants have not met their burden under article 36.09 of showing that their motions to sever were timely presented to the trial court and that evidence was introduced thereon. *322See Foster v. State, 652 S.W.2d 474, 477 (Tex.App.—Houston [1st Dist.] 1983), aff'd, 693 S.W.2d 412 (Tex.1985).

The record reflects that the appellants asked the court for a severance at several points during trial, particularly when Angela Simon introduced excerpts from her diary and the State offered the photographs taken from Armando Simon’s photograph album. In this latter respect, we note that neither motion to sever specifically mentioned the photographs. The record further shows that when either of the appellants objected to evidence on the ground that it was inadmissible hearsay as to such appellant, the trial court, in overruling the objection, cautiously instructed the jury that it should consider such evidence only as to the party against whom it was admitted. Although it cannot be said with certainty that the jury gave heed to these cautionary instructions, it is obvious that the court’s instructions tended to lessen the prejudicial impact of the evidence.

A trial court has considerable discretion in deciding whether a joint trial v/ould be so prejudicial to a particular defendant that a severance should be ordered. Foster v. State, 652 S.W.2d at 477. To establish an abuse of this discretion, a defendant has the “heavy burden” of showing clear prejudice resulting from the denial of a request for severance. Morales v. State, 466 S.W.2d 293 (Tex.Crim.App.1970). Thus, we are required to uphold the trial court’s ruling in the present case unless the appellants have affirmatively shown that they were clearly prejudiced by the joint trial. Sanne v. State, 609 S.W.2d 762 (Tex.Crim.App.1980).

While the appellants suggest that their motions to sever were presented to the trial court for pretrial determination, they have made no affirmative showing that a hearing was actually held and that evidence was presented in support of their motions. Thus, we hold that appellants have not met their burden of showing that their motions were timely presented to the court and that evidence was offered in support of their motions, as required by article 36.09. See Sanne v. State, 609 S.W.2d at 775.

We further hold that appellants have not shown a clear abuse of discretion in the denial of their motions to sever during trial. Although the diary and photographs, and certain other evidence, which was admissible against one appellant and not the other, was arguably prejudicial to both parties, we cannot say that the defenses of Armando and Angela Simon were so clearly antagonistic that the trial court abused its discretion in proceeding with the joint trial. There was abundant other evidence from which the jury could have reached the same conclusions about the appellants’ guilt, and when evidence was admitted that was hearsay as to one or the other of the appellants, the court, acting on counsel’s objections, very carefully instructed the jury that their consideration of such evidence was limited to the party against whom it was admitted.

We accordingly hold that no abuse of discretion has been demonstrated, and we overrule the appellants’ points of error complaining of the court’s denial of their motions to sever.

We next consider the contentions advanced by Armando Simon that the trial court erred in allowing his wife, Angela Simon, to testify despite his objection, and in allowing her to introduce her diary into evidence. We also consider the related contentions advanced by Angela Simon that the court erred in allowing the prosecutor to cross-examine her on matters not raised during her direct examination.

Armando Simon argues that the testimony and diary of his wife were admitted in violation of former Tex.Code Crim.P. art. Tex.Code Crim.P. art. 38.11, ch. 399, sec. 2(A), 1965 Tex.Gen.Laws, repealed by ch. 685, sec. 9(b), 1985 Tex.Sess.Law Serv. 5140 (Vernon), (since recodified as Tex.R. Crim.Evid. 504), which essentially forbids one spouse from testifying against the other, and which affords each spouse the privilege of excluding confidential communication made during the existence of the marriage relationship. Johnson v. State, 95 Tex.Crim. 483, 255 S.W. 416 (1923). One spouse may testify as a witness for the other, but a spouse may testify against *323another only in the narrow exception set forth in former article 38.11. Young v. State, 603 S.W.2d 851 (Tex.Crim.App.1980); (see Tex.R.Crim.Evid. 504, which became effective September 1,1986, after this case was tried).

We conclude that the testimony of Angela Simon was exculpatory in nature, and although some portions of her diary raised an inference of Armando Simon’s involvement with the complainant, we cannot say that her testimony or the excerpts from her diary substantially prejudiced Armando’s defense. Indeed, Angela Simon’s testimony tends to discredit the complainant’s version of the case, and thus tends to exculpate both spouses with respect to the offense charged. Thus, we cannot say from the record before us that the trial court abused its discretion in admitting the testimony and diary of Angela Simon.

Neither does the record demonstrate that the trial court abused its discretion in permitting the prosecutor to cross-examine Angela Simon about various matters on which she was not directly examined. Armando Simon’s discussion of these assertions relates only to the questioning of Angela about the dates of certain motel receipts, which arguably damaged Armando Simon’s case. The appellate brief of Angela Simon does not discuss or argue how such cross-examination was prejudicial to her defense, and we find no error presented for review. For the reasons stated, we overrule Armando Simon’s points of error 11 and 12 and Angela Simon’s points of error 20, 21, 22, and 23.

We next consider appellants’ contentions that the trial court abused its discretion in requiring their respective trial counsel to introduce and call all witnesses offered by them in-camera regarding the complainant's prior sexual conduct.

During the presentation of her defense, Angela Simon offered certain testimony regarding the complainant’s prior sexual conduct. To determine the admissibility of such testimony, the trial court conducted two in-camera hearings pursuant to the provisions of former Tex.Penal Code sec. 22.065, ch. 203, sec. 3, 1976 Tex.Gen.Laws 477, repealed by ch. 685, sec. 9(b), 1985 Tex.Sess.Law Serv. 5140 (Vernon), (since recodified as Tex.R.Crim.Evid. 412). At the hearings, Angela Simon offered witnesses who testified about the prior sexual activity of the complainant. Three of the witnesses testified that they had sexual intercourse with the complainant. On the basis of the cumulative weight of the testimony, the trial court ruled that the evidence should be admitted before the jury. Later, during the course of the presentation of evidence, Angela Simon elected not to offer the testimony of one of the three witnesses who claimed to have had sexual intercourse with the complainant. The trial court stated that it did not find two sexual acts to constitute sexual promiscuity. The trial court then ruled that unless all three witnesses testified, evidence on the issue of promiscuity would not be admitted. On appeal, the appellants contend that the trial court abused its discretion in making that ruling because it denied them effective assistance of counsel and required them to be controlled by the court’s decision about what evidence should be heard by the jury. In order to comply with the court’s ruling, the appellants called one particular witness to the stand who, they contend, was a “terrible witness” and was harmful to their defense.

Although former section 22.065 did not specifically authorize the type of ruling that appellants complain of here, it did indicate that the court would determine what evidence is admissible and limit the testimony offered. The clear purpose of the statute is to protect a victim of a sexual offense against needless and unnecessary harassment by testimony about prior sexual conduct. See Allen v. State, 700 S.W.2d 924, 928-30 (Tex.Crim.App.1985). Under the particular circumstances shown, we cannot say that the trial court abused its discretion in ruling that the evidence on the issue of promiscuity would be admissible only on the testimony of all three witnesses. We accordingly overrule point of error 17 of Armando Simon and point of error 24 of Angela Simon.

*324Both appellants also contend that the trial court abused its discretion in admitting certain testimony by various state witnesses that related conversations between such witnesses and either Armando or Angela Simon, as well as in admitting Angela’s diary excerpts. They contended that all such testimony was hearsay about one of the appellants. Testimony regarding such conversations was admitted as admissions against interest by a party, as recorded recollections of events, and as present sense impressions. See Tex.R. Crim.Evid. 801(e), 803(1) and (5). On each occasion that such evidence was admitted, the court instructed the jury that their consideration of such evidence was limited to the defendant against whom it was offered and to the issue for which it was offered.

Specifically, Armando Simon complains of testimony of the complainant relating to a conversation between her and Angela Simon about whether the complainant was using any type of birth control. In another instance, the complainant was permitted to testify about her conversation with Angela regarding Angela’s desire to give Armando a gift of a girl, and that she, Angela, and Armando were free to seek out other sexual partners. Another witness testified that Angela told her that Armando “got Debbie naked” but that Debbie “chickened out” at the last moment and that Armando knew many back alleys and housing developments to go to and “things like that.” A third witness, a minor at that time, testified that Angela asked her to be Armando’s Christmas present.

Angela complains specifically of testimony by the complainant regarding conversations between the complainant and Armando about flowers he sent her under an assumed name and of testimony by another witness relating conversations between the witness and Armando. Appellants contend that the trial court’s instructions were ineffective in preventing the harm necessarily resulting from this testimony. But the trial court very clearly instructed the jury that it should consider the testimony only against the appellant against whom the evidence was obviously admissible. We conclude that no abuse of discretion is shown. We accordingly overrule points of error five, six, seven, eight, and thirteen of appellant Armando Simon and points of error six, nine, ten, and thirteen of appellant Angela Simon.

Neither do we consider that the trial court abused its discretion in admitting into evidence appellants’ photograph albums that contained pictures of nude women and Armando Simon. Appellants contend that these albums showed extraneous matters that were not relevant to any material issue in the case, and that they were inflammatory and prejudicial to their defense. We overrule these contentions. The albums were admitted as evidence of the means used by appellants, one of whom was a trained psychologist, to arouse the complainant’s sexual curiosity and to reduce her resistance to sexual contact. Thus, the photographs were offered as evidence of an overall criminal design. See Johnson v. State, 650 S.W.2d 784 (Tex.Crim.App.1983). It was the trial court’s prerogative to determine whether the probative value of the evidence was outweighed by its prejudicial effect. The court overruled the objection to the photographs and admitted them into evidence. We hold that the appellants have not shown a clear abuse of discretion in the court’s ruling. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Crim.App.1976).

We accordingly overrule Armando Simon’s points of error one through four and Angela Simon’s points of error one, three, four, and five.

Armando Simon contends in points of error 14, 15, and 16 that it was error for the trial court to permit the State to cross-examine Angela Simon beyond the scope of her direct examination. Specifically, Armando complains about questions concerning dates of motel receipts and details of “The Rocky Horror Picture Show.” The complained of questions relate to matters that were referred to in Angela Simon’s direct testimony. A defendant’s wife may be cross-examined on matters about which she testified on direct examination, and *325also regarding matters that are germane and pertinent to her direct testimony, but that were not specifically brought out on direct examination. Mitchell v. State, 517 S.W.2d 282, 287 (Tex.Crim.App.1974). Here, the cross-examination did not bring out any new and incriminating evidence against Armando Simon. We overrule Armando Simon’s points of error 14, 15, and 16. See Firo v. State, 654 S.W.2d 503 (Tex.App.—Corpus Christi), aff'd, 657 S.W.2d 141 (Tex.Crim.App.1983).

Angela Simon contends in seven points of error that the trial court erred in allowing the State to introduce testimony about her character and in failing to grant a mistrial because of such testimony. The record reflects that the initial testimony regarding Angela Simon’s alleged bi-sexuality was limited by the trial court as res gestae to her disclosure of the affair between her husband and the complainant. When the prosecution later attempted to make use of testimony about Angela’s alleged bi-sexuality to impeach her, the court sustained her objection, sharply admonished the State’s attorney, and took Angela Simon’s motion for mistrial under advisement. The court then denied the motion for mistrial but gave express instructions to the jury to disregard the testimony.

Error in the admission of improper testimony may usually be cured by timely objection and an instruction to the jury to disregard the evidence. Franklin v. State, 693 S.W.2d 420 (Tex.Crim.App.1985). Here, we find that the court’s action cured any error. Accordingly, we overrule Angela Simon’s points of error 11,12,14,15,17, 18, and 19.

The judgment of the trial court is affirmed.

LEVY, J., dissents.