Chad Isenberger v. State

Opinion issued December 11, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00417-CR CHAD ANDREW ISENBERGER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 50846 MEMORANDUM OPINION Appellant, Chad Andrew Isenberger, was convicted by a jury of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2008). After appellant pleaded true to three previous burglaries, the trial court assessed punishment at imprisonment for forty years. Appellant brings five points of error. The first four allege the trial court erred in admitting evidence of two extraneous offenses, in overruling two challenges for cause to veniremembers, and in not granting a mistrial based on alleged inadmissible testimony. The last point of error argues that this Court should grant a new trial based on the factual insufficiency of the evidence. We affirm. Background Appellant was a neighbor of the victim, A.A., a thirteen-year-old girl. Appellant lived in a trailer with his wife and two children, and the trailer was next door to A.A.'s house. A.A. testified that in August 2005 appellant engaged in oral sex and sexual intercourse with her. H.P., a friend of A.A.'s, testified that she was present on one occasion when appellant asked both girls to lift up their skirts and appellant performed oral sex on A.A. Appellant's wife testified that in August 2005 she was living in the trailer with her and appellant's two children. Because of the close quarters, appellant's wife testified that the sexual encounters between appellant and A.A. could not have happened during August 2005. Appellant's son testified for the State that after his mother moved out of the trailer, he saw appellant and A.A. on a couch under some covers. Finally, the State called two of A.A.'s female friends, H.P. and L.Z., to testify as rebuttal witnesses that appellant had exposed himself to them. Discussion In point of error one, appellant complains of the admission of evidence that appellant committed the offense of indecency with a child on two occasions by exposing his genitals to A.A.'s friends, H.P. and L.Z. See Tex. Penal Code Ann. § 21.11 (Vernon 2003) (indecency with child). Appellant argues that the testimony is nothing more than evidence of other crimes to prove his character in order to show he acted in conformity, which is specifically prohibited by Texas Rule of Evidence 404(b). Appellant spends 12 pages of his brief discussing cases about extraneous offenses. However, appellant does not discuss the specific bases on which the trial court admitted the testimony concerning the two instances of indecency with a child: "I think it is relevant, other than character conformity; and I think it does go to rebut opportunity and fabrication; and I find that the probative value is not outweighed by the prejudice. So I'm going to allow you [the State] to go into it this afternoon." The trial court reached this conclusion after a hearing outside the presence of the jury that takes up 44 pages of the reporter's record. Appellant does not substantively discuss that hearing. Further, of the ten cases appellant cites as authority for why this Court should reverse, not a single one is factually similar. These cases stand for the settled proposition that extraneous acts are not admissible to show character conformity. See Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996); Owen v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992); Turner v. State, 754 S.W.2d 668 (Tex. Crim. App. 1988); Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986); Boutwell v. State, 719 S.W.2d 164 (Tex. Crim. App. 1985 & 1986); DeLeon v. State, 77 S.W.3d 300 (Tex. App.--Austin 2001, pet. ref'd); Webb v. State, 36 S.W.3d 164 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd); Castillo v. State, 910 S.W.2d 124 (Tex. App.--El Paso 1995, pet. ref'd); Celeste v. State, 805 S.W.2d 579 (Tex. App.--Tyler 1991, no pet.); Dove v. State, 768 S.W.2d 465 (Tex. App.--Amarillo 1989, pet. ref'd). (1) Appellant's wife testified at trial that A.A. could not have been sexually assaulted on the dates A.A. claimed they occurred. The wife was living in appellant's trailer at that time, and she testified that it would have been physically impossible for the assaults to have occurred without her knowledge. Appellant, therefore, opened the door to testimony that he did have the opportunity to commit the assaults. This kind of testimony is specifically permitted under Rule 404(b) ("It may, however, be admissible for other purposes, such as proof of . . . opportunity . . . ."). An objection based on Rule 404(b) inherently includes an objection that the testimony is not relevant under Texas Rule of Evidence 402. Rankin, 974 S.W.2d at 709. The trial court specifically concluded that the testimony was relevant to rebut the issues of opportunity and fabrication. The trial court also specifically concluded that the probative value of the testimony was not outweighed by its prejudice. As we previously noted, appellant does not substantively discuss why the testimony is inadmissible when the trial court concluded the testimony should be admitted to show opportunity. Applying the abuse-of-discretion standard of review set forth in Montgomery v. State, we hold that the trial court did not abuse its discretion in admitting the evidence of the two instances of indecency with a child. (2) See Montgomery v. State, 810 S.W.2d 390-93 (Tex. Crim. App. 1990 & 1991). We overrule point of error one. In points of error two and three, appellant contends the trial court erred in overruling a challenge for cause during voir dire. Appellant asked the members of the venire to each state a score from 0 to 4, with "0" signifying innocence and "4" guilt. The challenged veniremember responded that she gave appellant a 1.5, and the following discussion occurred: [APPELLANT"S LAWYER]: . . . Are you operating from, say, a perspective or a feeling that [appellant's] a little bit guilty? Is that -- [VENIREMEMBER]: I base it basically -- I have a son and I have a daughter and I know children very well and so I tried to kind of regulate my feelings on raising my children how they answer things. I know when they are lying and when they are not, when they are involved in something, when they are not. I don't think anybody is completely innocent of anything. I mean there is always a margin of some part of guilt in something. I mean I don't think anyone in this whole room is completely innocent of anything. You know, I'm saying they may have been guilty of something in their lifetime. Appellant acknowledges that the veniremember specifically stated that she understood the presumption of innocence, that she did not know whether appellant was guilty or not guilty, and that "you're innocent until proven guilty and that's truly what I believe." The trial court overruled the challenge for cause "[b]ased on the totality of her responses." The veniremember's remarks were clearly her general theological and/or philosophical belief in the imperfection of human beings. When specifically questioned about the appellant's guilt or innocence, she was unequivocal in her belief in the presumption of innocence. Appellant's brief contains 12 pages of argument and authority generally discussing the presumption of innocence and the requirement that jurors be unbiased as a matter of law (point two) and as a matter of fact (point three). None of this argument or authority discusses whether a prospective juror who believes in human frailty is inherently biased, and we know of no such authority. Points of error two and three are overruled. In point of error four, appellant claims the trial court erred in overruling his motion for a mistrial. Appellant's son testified for the State, and the following occurred: Q. Okay. So at some point after that you were living in Wimberly with your mother? A. Yes, sir. It was after we had to move because my dad was trying to -- he thought that he had work in Louisiana, but what it was was that people wanted him out of Twin Lakes because they thought that he was going to rob them. [APPELLANT'S LAWYER]: Objection, Your Honor, to any kind of backdoor hearsay the witness is trying to get into. THE COURT: I'll sustain that objection. [APPELLANT'S LAWYER]: And request an instruction to the jury to disregard the previous answer of the witness. THE COURT: Ladies and gentlemen, just disregard the previous response. [APPELLANT'S LAWYER]: Request a mistrial for the record at this time. THE COURT: Overruled. Appellant's brief contains no argument or authorities relevant to the overruling of a motion for mistrial. Appellant does cite to eight cases involving reversible error involving hearsay, but in each of the cases (1) the trial court overruled the defendant's objection to the hearsay testimony or (2) there was no objection based on hearsay. See Gardner v. State, 699 S.W.2d 831, 834 n.3 (Tex. Crim. App. 1985); Smith v. State, 511 S.W.2d 296, 296-97 (Tex. Crim. App. 1974); Gamboa v. State, 481 S.W.2d 423, 425 (Tex. Crim. App. 1972); White v. State, 451 S.W.2d 497, 499 (Tex. Crim. App. 1969 & 1970); Cofield v. State, 857 S.W.2d 798, 804 (Tex. App.--Corpus Christi 1993), aff'd, 891 S.W.2d 952 (Tex. Crim. App. 1994); Hill v. State, 817 S.W.2d 816, 817 (Tex. App.--Eastland 1991, pet. ref'd); Davis v. State, 772 S.W.2d 563, 568-69 (Tex. App.--Waco 1989, no pet.); King v. State, 765 S.W.2d 870, 871 (Tex. App.--Houston [1st Dist.] 1989, no pet.). A trial court's denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A mistrial is appropriate for only highly prejudicial and incurable errors. Id. Ordinarily, a prompt instruction to disregard will cure the error. Id. We hold that the trial court did not abuse its discretion in denying appellant's motion for mistrial. Point of error four is overruled. In point of error five, appellant challenges the factual sufficiency of the evidence concerning his conviction. Appellant's argument under this point is that the testimony established that the aggravated sexual assault occurred in August 2005, during a time when appellant's wife was living in the trailer and she testified that the offense could not have occurred. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson, 204 S.W.3d at 415. Appellant's factual-sufficiency argument is that it was manifestly wrong for the jury to not accept the testimony of appellant's wife that appellant could not have committed the aggravated sexual assault in August 2005. It was the province of the jury as fact-finder to determine the credibility and to decide how much of the testimony to believe. Cain, 958 S.W.2d at 407 n.5. The jury was free to disbelieve appellant's wife and believe the testimony of A.A. We hold that the jury's verdict was not factually insufficient. We overrule point of error five.Conclusion We affirm the judgment of conviction. Sam Nuchia Justice Panel consists of Chief Justice Radack and Justices Nuchia and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. We note that appellant's lawyer states in his brief that these ten cases: aptly illustrate the reasoning and proper conclusion of reversible error which ought properly to be drawn in the instant case. To conclude otherwise would constitute "result oriented" and "politically correct" jurisprudence and intellectual contortionism honed to perfection. 2. At the conclusion of the testimony concerning the extraneous acts, the trial court instructed the jury to evaluate the evidence as follows: "That evidence, if any, will not be considered by you unless or until you believe the State has proven it beyond a reasonable doubt; and even then, said evidence, if any, shall not be considered by you unless you believe beyond a reasonable doubt that it proves the Defendant's motive, intent, plan, opportunity, identity, or consciousness of guilt."