in the Matter of E. C. S.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00867-CV In the Matter of E. C. S. FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT NO. 219, HONORABLE GUILFORD L. JONES, JUDGE PRESIDING A jury found that appellant, E.C.S., engaged in the delinquent conduct of aggravated sexual assault. The court committed him to the Texas Youth Commission until his twenty-first birthday. E.C.S. challenges both the court's actions in admitting evidence of extraneous conduct and the legal and factual sufficiency of the evidence to support the jury's findings. We will affirm. BACKGROUND Undisputedly, sexual contact occurred between the appellant, a fifteen-year-old male from Cherokee, Texas, and the complainant, a sixteen-year-old female from another town. Appellant contends the contact was consensual. There is no dispute that the appellant and complainant first met on April 5, 1999. The complainant was in town visiting her cousin for Easter. As the two girls drove around Cherokee, they saw appellant sitting outside his house. He waved and they stopped. He got in the car, driven by the complainant, and rode to her cousin's house. They played computer games and talked; appellant tried to get the complainant to smoke, but she declined. Appellant asked for a ride home, and the complainant offered to drive him home. On the way home, appellant asked what the complainant intended to do after dropping him off. When she said that her cousin was going to show her the "major makeout place" in town--a cemetery--he told her that he could show her the place. It is here that their recollections of events diverge. Appellant testified that the complainant stopped the car at the cemetery. He took a cue from her behavior of stopping at the "major makeout" place and kissed her. He said she returned the kiss, putting her arms around him. He convinced her to perform oral sex on him, which she did, briefly, before deciding that she did not want to continue. He asked her what else she wanted to do; when she did not respond, he kissed her again, and she again returned the kiss. As they kissed, he progressed from rubbing her legs to rubbing her "private" to inserting his fingers into her vagina one at a time. He testified that he asked her if she liked what he was doing and she said "yes," until he inserted a third finger. When she winced, he told her to relax, but when she said, "That's enough," he stopped and returned to his side of the car. As the complainant drove him home, appellant asked if she was okay and she said, "yes." He asked when she would be back in town and whether she would look for him. She told him she would return the next week and agreed to look for him. They kissed again and he got out of the car. Appellant denied threatening the complainant, grabbing her hair, or forcing her to do anything; he said he might have put his hand on or around her back during their brief foray into oral sex. He did not drive the car, did not take the keys, and she did not relinquish the driver's seat while he was in the car. He testified that he did not know of any rope in the car, did not know of her interest in the murder of James Byrd by dragging in Jasper, Texas, and did not know she claimed that he had threatened her with a similar dragging death until he was arrested and placed in a juvenile detention center. He admitted that he had previously been adjudicated delinquent for pinching a girl. He said he was released from his probation, though he admitted he did not comply with all the rules of his probation. The complainant's testimony diverges from the appellant's testimony regarding the circumstances preceding and including their physical contact. She testified that she was uneasy driving appellant to the cemetery, but she took him anyway because he seemed like a cool person. She did not expect to be attacked. She testified that turning off the car at the cemetery to talk was appellant's idea; she says she told him that she wanted to go back to town. His response was to ask for oral sex, which surprised her. She said they argued about it for ten minutes, during which time he threatened to drag her behind the car like James Byrd, Jr. had been dragged.(1) She said he did not show her any rope, but grabbed her arm and used a tone of voice that scared her, made her cry, and made her fear for her life. She testified that he then grabbed her hair and forced her to put her mouth on his penis for about thirty seconds, though she did not remember how it happened or how he got his clothes off. Then, while still holding her hair and her wrist, he told her to lean her seat back; when she refused, he did it for her. She said he started kissing her and refused her request that he stop; as he continued, he moved his hand up her leg and penetrated her vagina with his fingers. She told him it hurt, and he said it would feel better in a little bit. Then he stopped and asked what she wanted to do. When she again said she wanted to go back into town, he said, "You don't want to have sex?" When she said "no," he let go of her hair and wrist and said, "You better not tell anybody." As she drove him to his house, they discussed when she would return to town. She returned to her cousin's house and told her cousin what had happened, then made the more than two-hour drive home. She said it took a few hours to work up the courage to tell her mother, who then reported the assault. At the suggestion of San Saba County law enforcement, the complainant went to a hospital where she was examined by a nurse and given pain medication to help her sleep. The next day she went to the San Saba courthouse to talk with authorities about the assault. The complainant testified that the appellant was never behind the wheel of her car. She denied that she made up the dragging threat. She acknowledged that going to see the "major makeout place" was her and her cousin's idea, not appellant's idea. The complainant's cousin confirmed her role in the events described by the complainant, but conceded that she had no direct knowledge of what occurred between the complainant and appellant. The cousin said that, upon returning from taking appellant home, the complainant went straight to the bathroom, then lay on the cousin's bed for a few minutes. The complainant seemed very upset--she was pale, slightly disheveled, and quiet. The complainant said she wanted to talk to her cousin outside; she started crying and told the cousin she had been attacked. The cousin's retelling of what the complainant told her about the encounter was essentially the same as the complainant's testimony at trial. The cousin conceded that she had not put anything in her written statement about the threat of dragging; she thought that the complainant told her about it over the telephone on the night of the incident. (The complainant testified on rebuttal that she told her about the threat the first time they talked about it.) The complainant's mother testified that her daughter changed at Easter. She testified that she could tell something was wrong with her daughter when she came home from visiting the cousin. She encouraged her daughter to talk, but her daughter only got more nervous. She asked her daughter to tell her what was wrong regardless of what it was. She testified that her daughter said she was afraid to say what happened because she feared she would not get to visit her cousin again and that lawyers would be involved. Only when the mother threatened to take the car away did her daughter talk with her; the mother later said that she made the threat not realizing how serious the secret was. Her daughter asked her to come into the bathroom so that none of the other children would hear. Only then did her daughter tell her about the events of the day; the mother's testimony about what the complainant told her that night is consistent with the complainant's testimony at trial, including the threat of dragging behind the car. She did not believe her daughter made up the story. She said that her daughter's grades declined and her outlook on life changed after the incident. The sexual assault nurse examiner testified regarding her examination of the complainant. She said that the complainant had a five-centimeter-long tear in the skin along the right labia minora of her vagina and a one-and-a-half-inch tear near the perineum, both of which the nurse estimated had been made within the previous day. She said the injuries were consistent with pulling or pushing with sufficient force to tear the skin, which is consistent with the complainant's report. She said the complainant's cervix was red and sore; these observations could indicate infection, but no other signs of infection were present. She said the complainant reported great tenderness on her mons pubis, but examination revealed no obvious trauma. The nurse said the complainant's injuries were consistent with forceful digital penetration and that, if the contact were consensual, it was sadomasochistic; she said that she had not seen teens involved in sadomasochistic sex. She said she did not think that mere inexperience could explain the injuries because any consensual activity would have stopped before such painful injuries occurred. DISCUSSION The appellant raises four points of error on appeal. He asserts that the district court erred by failing to explain certain evidentiary rulings on the record and failing to give a limiting instruction at the proper time. He also contends the evidence is legally and factually insufficient to support his adjudication. By two points of error, appellant complains about the court's actions and omissions in admitting evidence of an extraneous bad act. By point three, appellant contends that the district court erred by failing to provide on the record a complete relevancy analysis in response to his objection to the State's offer of extraneous conduct evidence. Appellant argues that the district court's failure to articulate the basis on which it found the evidence admissible also prevented him from knowledgeably lodging a follow-up objection that the probative value of the offered evidence was substantially outweighed by the risk of prejudice. By point four, appellant additionally contends that the court erred by failing to give an appropriate limiting instruction to the jury regarding that evidence at the time the evidence was admitted. Texas Rule of Evidence 404(b) prohibits admission of evidence of other crimes, wrongs, or acts in order to prove that the accused acted in conformity with the character shown by those extraneous acts; such evidence may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The court of criminal appeals has held that, once a 404(b) objection is made, the proponent of the evidence must satisfy the trial court that the extraneous bad act has relevance apart from its tendency to prove character conformity. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh'g). Moreover, "[t]he trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which evidence is either offered by the proponent or ultimately admitted by the trial court." Id. We review the admission of evidence for an abuse of discretion. Id. at 391; see also Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g). In its opinion on original submission, the Rankin court wrote that "[a] court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a 'fact of consequence' in the case more or less likely." Id. at 710 (original op.).(2) At the center of the dispute is evidence that appellant was previously on probation in Llano County for pinching a girl.(3) The State asserted that it offered the evidence to show intent, knowledge, motive, and lack of mistake or accident. The appellant rejected those reasons and requested a "complete relevancy analysis." The court overruled his objection and stated: It's this Court's opinion under, both under the Montgomery opinions and [Santellan] which is 939 S.W.2d 155, that this is precisely the type of extraneous offense or bad act that is admissible and because it does have a strong probative value as to intent and motive, knowing, action, pattern, preparation, plan, it is not strictly character conformity but goes directly to the elements in this case. Appellant's attorney shortly thereafter stated, "As I understand it, the Court is admitting it as proof of all the eight exceptions in 404(b) or maybe the Court left out one." The district court responded, "It would be improper for me to specify the matters for which it is admitted because that would be a comment on the weight of the evidence." We find no error in the district court's failure to conduct a more extensive relevancy analysis on the record. Proof of the offense required proof that the appellant acted intentionally or knowingly in committing the sexual assaults. The State asserted that it was offering the evidence to show intent, knowledge, and absence of mistake. In overruling the objection to evidence of the probation for pinching, the district court listed intent and knowledge among the factors regarding which the evidence was relevant. Despite the district court's later refusal to get more specific, we conclude that the court fulfilled its duty by listing aspects of the evidence that are relevant to elements of the offense. See Montgomery, 810 S.W.2d at 387; see also Rankin, 974 S.W.2d at 710. Similarly, we conclude that the district court did not prevent appellant from making an informed objection under Rule 403. Appellant complains that, because he did not know the purpose for which the evidence was admitted, he could neither adequately gauge its probative value nor articulate how that probative value was substantially outweighed by the risk of unfairly prejudicing, confusing, or misleading the jury. First, we have concluded that the district court sufficiently identified the relevant purposes for admitting the evidence. Second, even if the identification was insufficient, that insufficiency did not prevent appellant from presenting a Rule 403 objection. The possible purposes for admissibility are limited and the improper effects of the evidence are the same regardless of the reason for admission. Appellant could have argued alternatively on all those bases; appellant's attorneys repeatedly showed themselves capable of making articulate alternative objections. We overrule point three. Appellant further contends that the district court erred by refusing to give an appropriate limiting instruction to the jury when admitting the extraneous act evidence. After the evidence was adduced, the court instructed the jury as follows: Ladies and Gentlemen, you have heard some evidence of what is known as an extraneous offense, the prior Llano offense. You are instructed that you may not consider such evidence merely for showing that the juvenile committed a delinquent act in the past, that he therefore must have committed a delinquent act on the current occasion. The appellant contends that the court should then also have instructed the jury regarding the purposes for which they could consider the evidence, as it did in the jury charge:(4) You are instructed that any evidence before you in this case regarding the Juvenile-Respondent having committed offenses other than the offense alleged against him in this case, you cannot consider such evidence unless you find and believe beyond a reasonable doubt that he committed such other offenses, if any were committed; and even then you may only consider the same in determining the intent, knowledge, plan, motive, or preparation of the Juvenile-Respondent, if any, in connection with the offense alleged against him in this case and for no other purpose. The appellant contends that this instruction did not solve the problem because, by the time it was given, the jury "probably had already illicitly used the contested evidence in various ways to shade their thoughts or weight their conclusions" regarding elements of the case. Appellant's argument thus depends on a finding that the three hours(5) that passed between the admission of the evidence and the giving of the more extensive limiting instruction allowed jurors to make harmful and unwarranted use of the extraneous act evidence. We conclude that the district court did not err in its instructions. The district court's in-trial limiting instruction was sufficient to protect appellant from the proscribed harm. The rules of evidence forbid the use of extraneous bad acts to prove the character of a person to show that he acted in conformity with that character in committing the offense. See Tex. R. Evid. 404(b). The in-trial instruction forbade the jury from such use of the evidence of the extraneous offense, but did not list the allowable uses of the evidence. Appellant contends that this failure distracted jurors by permitting them to contemplate all sorts of misuses of the evidence. Yet the in-trial instruction proscribed the one forbidden use--character conformity. The rule does not exclude other uses. The only potential defect, failure to guide the allowable uses of the evidence, was cured by the jury charge instruction a few hours later. That instruction did not prejudice the appellant by dictating the allowable uses of the evidence more tightly than required. Though the trial court presented its list as exclusive, Rule 404(b) itself presents the uses listed as examples--extraneous offenses may "be admissible for other purposes, such as proof of motive, opportunity, . . . ." Id. (Italics added.) The court's instruction limited the jury from the improper use of the evidence when admitted, and the jury charge instruction limited the allowable uses more tightly than the rule requires. We conclude that the district court committed no error. We overrule point four. By his remaining two points of error, appellant contends that the adjudication of delinquency is not supported by legally or factually sufficient evidence. Adjudications of delinquency in juvenile cases are based on the criminal standard of proof. See Tex. Fam. Code Ann. § 54.03(f) (West 1996). Therefore, we review adjudications of delinquency in juvenile cases by applying the standards applicable to challenges to the sufficiency of the evidence in criminal cases. See In re E.P., 963 S.W.2d 191, 193 (Tex. App.--Austin 1998, no pet.). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)). When reviewing the factual sufficiency of the evidence, we view "all the evidence without the prism of 'in the light most favorable to the prosecution.' . . . [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 131-132 (Tex. Crim. App. 1996) (citing Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd )); see also In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.--Houston [14th Dist.] 2000, no pet. h.). When reviewing the evidence, we give some deference to determinations made by the jury. The jury decides the credibility of the witnesses and the weight to be given their testimony, and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974). A jury can accept the State's version of the facts and reject appellant's version or reject any of the witnesses' testimony. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.--Houston [14th Dist.] 1991, no pet.). In order to find that appellant committed aggravated sexual assault, the jury had to find not only that appellant committed the sexual assault, but that while doing so he, by acts or words, placed the complainant in fear that death or seriously bodily would be imminently inflicted upon her. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii) (West Supp. 2000). The jury must decide whether the complainant was fearful, whether the defendant's conduct caused that fear, and whether the complainant's fear was a reasonable result of the defendant's conduct. Douglas v. State, 740 S.W.2d 890, 891 (Tex. App.--El Paso 1987, no pet.); Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex. App.--Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App. 1992); see also Kemp v. State, 744 S.W.2d 243, 245 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). The jury may consider an accused's objective conduct, acts, words, or deeds, and infer from the totality of the circumstances whether his overall conduct placed the complainant in fear of serious bodily injury. See id. It is not necessary to show that the appellant could have inflicted serious bodily injury. See Grunsfeld, 813 S.W.2d at 162; see also Lewis v. State, 984 S.W.2d 732, 734 (Tex. App.--Fort Worth 1998, pet. ref'd); Mata v. State, 952 S.W.2d 30, 32 (Tex. App.--San Antonio 1997, no pet.). The dispute on appeal over the sufficiency of the evidence is limited to whether the appellant caused complainant reasonably to fear imminent serious bodily injury or death; appellant does not challenge the sufficiency of the evidence regarding the physical elements of the sexual assault. The disputes are over whether appellant referred to the Jasper dragging murder and, if so, whether the complainant's fear of imminent death or serious injury was reasonable given the fact that she was driving the car and knew it did not contain rope. This case is similar to the Elkins case in which a Houston court of appeals upheld a verdict of aggravated sexual assault. See Elkins v. State, 822 S.W.2d 780 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). In that case, the complainant testified that Elkins grabbed her by her wrist and neck and pulled her into his van. Id. at 783. Elkins took the complainant down a dark road and she did not know where she was being taken. Elkins told her that if she screamed or tried to get away, "he'd kill her" and she believed and feared him. Id. She also testified that he kept his hand on her throat and kept repeating that he would kill her. She said his tone was harsh and mean. Id. She testified that, when he took her to a trailer, he threw her on the bed, held her neck and kept telling her not to say anything and then he took off her clothes. He grabbed her hair to force her to perform oral sex on him. Id. Differences from this case are obvious. Elkins drove, while the complainant did not. The Elkins assault occurred at night, but this assault occurred during the day. Elkins apparently kept a grip on his victim the whole time, made repeated threats, and committed repeated assaults; all these aspects of the assault were much lesser in this case, including the duration of the physical force, the number of threats, and the number and duration of the assaults. Duration and repetition, while potentially relevant to the reasonableness of the complainant's fear, are not necessary elements of the offenses charged here. We conclude that legally sufficient evidence supports the jury's findings. Though appellant denied making the threat, the complainant testified that he did. The jury was entitled to choose between them. Lending some support to the complainant's testimony is the testimony of her mother and cousin whom she told about the threat. Viewed in the light most favorable to the verdict, the uncertainty about when the complainant told them about the threat must be viewed as uncertainty about the chronology rather than a challenge to the credibility of her testimony. Because there is no doubt that being dragged behind an automobile can cause serious bodily injury or death, the issue remaining is whether the fear of imminent commission of the act was reasonable. While there may be doubt that the appellant could have carried through with his exact threat shortly after making it (there was no rope in the complainant's car), the statute does not require that the State show the appellant could carry out his exact threat. The statute requires only that the complainant fear serious bodily injury or death. The complainant testified that appellant's tone as he delivered the threat scared her. She was in an isolated, unfamiliar place. She testified that the appellant's grip on her hair and wrist was strong enough to force her to perform oral sex. As stated, appellant denies that any threats or compulsion occurred. Viewed in the light most favorable to the verdict, however, the physical location, his apparently superior physical strength, and his tone provide legally sufficient evidence to support the adjudication. Viewed without the prism of the light most favorable to the verdict, the evidence is factually sufficient to support the verdict. We have reexamined the evidence against the proper standard and conclude that the jury's findings that, beyond a reasonable doubt, the appellant committed the acts charged are not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule points one and two. CONCLUSION Having overruled all four points of error, we affirm the adjudication of delinquency. Jan P. Patterson, Justice Before Justices Jones, Yeakel and Patterson Affirmed Filed: October 26, 2000 Do Not Publish 1. The complainant had written a 22-page research paper for English class about a similar murder. James Byrd, Jr. was murdered in the East Texas town of Jasper by three men who tied him to a pickup and drove down a road, dragging Byrd to his death. The murder attracted a great deal of attention because of its gruesome brutality and the racial animus indicated thereby. The complainant said her paper discussed the facts of the murder, but focused her feelings about racial prejudice. She said she did not talk to the appellant about her paper. 2. On rehearing, the court reaffirmed the necessity of this type of review. See Rankin, 974 S.W.2d at 719. 3. The court excluded evidence of other bad acts allegedly committed by appellant. 4. The clerk's record does not contain the jury charge, but the appellant quotes from it in his brief and has a copy of it in the appendix to his brief, and the State does not challenge the assertion that this passage was in the jury charge. 5. Contrary to appellant's assertion in the brief that the jury heard the evidence "a day or so" before receiving the more extensive instruction, the clerk's record indicates that only a few (approximately four) hours passed. Proceedings began at 9:00 a.m. on September 1, 1999. Reporter's Record, Volume 4, p. 1. The evidence came in during appellant's testimony mostly on pages 62-64 and on pages 75-77. The in-trial limiting instruction is on page 78. The complainant's cousin testified, then the court recessed for lunch shortly before noon on page 96. After trial resumed at 1:00 p.m. (page 97), the complainant and her mother testified in rebuttal, and the court recessed at 1:20 p.m. (page 112) to finalize the charge. The court estimated the trial would resume at 1:50 p.m. The charge was read, argument followed, and the jury had a verdict at 6:47 p.m. assaults; all these aspects of the assault were much lesser in this case, including the duration of the physical force, the number of threats, and the number and duration of the assaults. Duration and repetition, while potentially relevant to the reasonableness of the complainant's fear, are not necessary elements of the offenses charged here. We conclude that legally sufficient evidence supports the jury's findings. Though appellant denied making the threat, the complainant testified that he did. The jury was entitled to choose between them. Lending some support to the complainant's testimony is the testimony of her mother and cousin whom she told about the threat. Viewed in the light most favorable to the verdict, the uncertainty about when the complainant told them about the threat must be viewed as uncertainty about the chronology rather than a challenge to the credibility of her testimony. Because there is no doubt that being dragged behind an automobile can cause serious bodily injury or death, the issue remaining is whether the fear of imminent commission of the act was reasonable. While there may be doubt that the appellant could have carried through with his exact threat shortly after making it (there was no rope in the complainant's car), the statute does not require that the State show the appellant could carry out his exact threat. The statute requires only that the complainant fear serious bodily injury or death. The complainant testified that appellant's tone as he delivered the threat scared her. She was in an isolated, unfamiliar place. She testified that the appellant's grip on her hair and wrist was strong enough to force her to perform oral sex. As stated, appellant denies that any threats or compulsion occurred. Viewed in the light most favorable to the verdict, however, the physical location, his apparently superior physical strength, and his tone provide legally sufficient evidence to support the adjudication. Viewed without the prism of the light most favorable to the verdict, the evidence is factually sufficient to support the verdict. We have reexamined the evidence against the proper standard and conclude that the jury's findings that, beyond a reasonable doubt, the appellant committed the acts charged are not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule points one and two. CONCLUSION Having overruled all four points of error, we affirm the adjudication of delinquency. Jan P. Patterson, Justice Before Justices Jones, Yeakel and Patterson Affirmed Filed: October 26, 2000 Do Not Publish 1. The complainant had written a 22-page research paper for English class about a similar murder. James Byrd, Jr. was murdered in the East Texas town of Jasper by three men who tied him to a pickup and drove down a road, dragging Byrd to his death. The murder attracted a great deal of attention because of its gruesome brutality and the racial animus indicated thereby. The complainant said her paper discussed the facts of the murder, but focused her feelings about racial prejudice. She said she did not talk to the appellant about her paper. 2. On rehearing, the court reaffirmed the necessity of this type of review. See Rankin, 974 S.W.2d at 719. 3. The court excluded evidence of other bad acts allegedly committed by appellant. 4. The clerk's record does not contain the jury charge, but the appellant quotes from it in his brief and has a copy of it in the appendix to his brief, and the State does not challenge the assertion that this passage was in the jury charge. 5. Contrary to appellant's assertion in the brief that the jury heard the evidence "a day or so" before receiving the more extensive instruction, the clerk's record indicates that only a few (approximately four) hours passed. Proceedings began at 9:00 a.m. on September 1, 1999. Reporter's Record, Volume 4, p. 1. The evidence came in during appellant's testimony mostly on pages 62-64 and on pages 75-77. The in-trial limiting instruction is on page 78. The complainant's cousin testified, then the court re