Earl Eugene Bryant v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00194-CR ______________________________ EARL EUGENE BRYANT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 21457 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION After the evidentiary portion of the guilt/innocence phase of Earl Eugene Bryant's jury trial on two counts of aggravated sexual assault of a child under fourteen years of age, (1) the trial court charged the jury that it should find Bryant guilty on count one if it found beyond a reasonable doubt that Bryant caused his mouth to contact or penetrate the sexual organ of the female child victim. Similarly, the trial court charged the jury that it should find Bryant guilty on count two if it found beyond a reasonable doubt that Bryant caused his sexual organ to contact or penetrate the sexual organ of the victim. The jury convicted Bryant, and assessed punishment at ninety-nine years' imprisonment and a $10,000.00 fine, on each count. (2) On appeal, Bryant raises three points of error: paragraph one of count one of the indictment was not properly amended, the evidence is legally and factually insufficient to support a conviction on count one of the indictment, and the court erred by refusing to admit an examining nurse's report which included evidence of prior sexual abuse of the victim by a different person. We affirm, holding (1) the indictment was properly amended, (2) legally and factually sufficient evidence supports the count-one conviction, and (3) excluding the report was not error on the basis preserved at trial. The indictment contained two counts against Bryant, each of which contained two paragraphs; and each of the four paragraphs alleged that Bryant did something to the sexual organ of the victim. In count one, paragraph one alleged oral penetration of the victim, while paragraph two alleged oral contact. In count two, paragraph one alleged penile penetration of the victim, while paragraph two alleged penile contact. (1) The Indictment Was Properly Amended Of the four paragraphs of the indictment, all but count one, paragraph two, alleged that the victim was a child under fourteen years of age. Count one, paragraph two, simply stopped, truncated before it reached that allegation. That paragraph was the subject of the State's motion to amend, to make all four paragraphs allege aggravated sexual assault. Bryant complains that the errant paragraph was never amended. Before trial, the State asked the trial court to amend the errant paragraph of the indictment. Although the trial court granted the motion, the face of the indictment originally provided in the appellate record contains nothing indicating the amendment. An indictment is effectively amended when a physical change is actually made to the charging instrument. (3) Ward, 829 S.W.2d 787. A supplemental clerk's record has now been filed which contains an amended indictment, filed on the date of the trial, showing the physical amendment of the indictment. Error has not been shown. We overrule this point of error. (2) Legally and Factually Sufficient Evidence Supports the Count-One Conviction Bryant next contends the evidence is legally and factually insufficient to support a conviction for aggravated sexual assault of a child based on count one, paragraph two of the indictment. As mentioned above, that portion of the indictment alleges Bryant committed the offense using his mouth to penetrate the victim: [Bryant,] on or about the 8th day of September, 2004[,] did then and there intentionally or knowingly cause the penetration of the female sexual organ of [R. H.], a child younger than 14 years of age who was not the spouse of said Defendant by the Defendant's mouth. (4) In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review, we also view all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency review, we are to afford "due deference" to a jury's determinations. Marshall, 210 S.W.3d at 625. Counsel states categorically that there is absolutely no evidence that Bryant penetrated the victim's sexual organ with his mouth. The State's response does not direct us to evidence of penetration, but instead points out that the charge allowed conviction if it found that Bryant caused his mouth "to contact or penetrate the sexual organ of R. H." R. H. testified that Bryant's mouth and tongue contacted her private parts. The charge combined paragraphs one and two, under count one, into two alternative means of Bryant's committing the aggravated sexual assault using his mouth. (5) As charged, the jury was authorized to convict, under count one, on either means. Generally, when a jury returns a general verdict and evidence is sufficient to support a finding of guilt under any paragraph allegation submitted, the verdict will be upheld. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). The victim testified that Bryant took off her panties and kissed her on her private area or parts, which she agreed was where she "tee-tees." The victim further testified that Bryant put her on her stomach on the bed and licked her "where he wasn't supposed to" after he had removed her panties. The evidence is legally and factually sufficient to support the verdict based on oral to genital contact. We overrule this contention of error. (3) Excluding the Report Was Not Error on the Basis Preserved at Trial Bryant finally contends the trial court erred by refusing his request to introduce a document into evidence. The document in question is a report prepared by Kimberly Light, a sexual assault nurse examiner who had examined the victim. The document contained information that the victim complained of having been sexually assaulted, not only by Bryant, her stepfather, but also, at an earlier time, by her natural father. On direct examination by the State, Light orally recounted selected portions of her report, leaving out any reference to the victim's natural father: (6) When we asked her why she was here today she said, well, my step daddy, he raped me while I was in Paris. . . . We asked her when you say rape, what do you mean. She said he tried to put his dingy in my private spot. Your front private spot or your back private spot. Front. Did he get it all the way in. She said no. We asked her did it hurt and she said yes. We asked did he do it a lot and she told us yes. Did he do it in the front and she said yes. And we asked her what her step daddy's name was and she told us Gene Bryant. Bryant then contended to the trial court that other information from the report should also have been admitted. Quoting the transcribed dialogue at this point in the trial presents Bryant's issue in context: The Court: The record should reflect that the jury's out of the courtroom. Please be seated. We just had held a bench conference at which the defense attorney complained that the witness had not testified to the contents of the entire document, specifically that there were references to prior events. The court ruled that those events are not admissible under any condition, that this is not a matter of trying to admit the entire document because the statute itself makes it inadmissible. (7) I offered then to defense counsel, and I'll reoffer, if you have got any other reason that you know that that statute should not be applied, I would be glad to hear it. I also at that time acknowledged that the copy of the entire document will be admitted into evidence for appellate purposes only. Is that it? (Defendant's Exhibit 1 received.) Defense Counsel: Your Honor, that's our understanding. I expressed my concern that she gave a detailed narrative of the document and failed to talk about the other parts that were in the document. The Court: Well -- Defense Counsel: Prior history. And that we would go ahead and have it admitted for the appellate record. The Court: Obviously the prosecutors had her properly prepared and she probably knew better than to go into it anyway, and it was not opened up in any way by the prosecution. I don't know of any other way that it would become admissible other than accidentally. If you have got anything else to offer, I will be glad to hear it. Defense Counsel: No, Your Honor, having it available for the appellate record will be sufficient. Bryant contends that, under the rule of optional completeness, the trial court should have allowed the entire report into evidence, or at least the information from the report about the victim earlier being sexually assaulted by her natural father. Bryant's argument at trial appears to have been--and on appeal appears to be--simply that, because Light used the report to testify about some of the victim's history of sexual victimization, the rule of optional completeness requires the report's other history of the victim's sexual victimization to be allowed into evidence as well. Certainly, the trial court opined that Light's direct testimony, quoted above, did not trigger Bryant's suggested use of the rule of optional completeness--"it was not opened up in any way by the prosecution." We address that complaint, that is, the one raised at trial and argued on appeal. (8) The standard of review for a trial court's ruling under the Texas Rules of Evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). Under the rule of optional completeness, when only a portion of an act, declaration, conversation, writing, or recorded statement is introduced, the adverse party is entitled to introduce into evidence the "whole on the same subject" or any related act, declaration, writing, or recorded statement necessary to a full understanding of the evidence, or to explain that evidence. Tex. R. Evid. 107. Rule 107 is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter "opened up" by the adverse party. Walters v. State, 206 S.W.3d 780, 786 (Tex. App.--Texarkana 2006, no pet.); (9) see Johnson v. State, 747 S.W.2d 451, 453-54 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). The rule takes effect when other evidence has already been introduced but is incomplete and misleading. Jones v. State, 963 S.W.2d 177, 182 (Tex. App.--Fort Worth 1998, pet. ref'd). "Once an evidentiary door has been opened by one side, this rule serves to allow the other side to complete the picture." West v. State, 121 S.W.3d 95, 103 (Tex. App.--Fort Worth 2003, pet. ref'd). (10) In this case, the challenged aspect of the evidence that was admitted did not suggest that only one person had ever assaulted the victim. The unadmitted statements to which counsel directs our attention are not directly related to the assault case before this Court, and there is nothing about this assault that the statements would illuminate. We cannot say, under this state of the evidence, that the trial court abused its discretion by overruling the motion to present the remainder of the report to the jury for its consideration. We overrule this contention of error. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: April 4, 2007 Date Decided: April 20, 2007 Do Not Publish 1. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2006). 2. The trial court sentenced Bryant accordingly and provided that his sentences would run concurrently. 3. The means of amending an indictment is set out by statute. See Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 2006). "Neither the [State's] motion [to amend an indictment] nor the trial judge's granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10." Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992). An indictment may be amended by interlineation on the face of the original charging instrument, or by incorporating into the trial court's file a separate document with the text of the amended charging language. See Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Barfield v. State, 202 S.W.3d 912, 919 (Tex. App.--Texarkana 2006, pet. ref'd). 4. This is not the portion of the indictment that was amended. 5. Paragraph one alleged oral to genital contact, while paragraph two alleged oral penetration of the victim's sexual organ. 6. Bryant's hearsay objection to that testimony was overruled, a ruling not challenged on appeal. 7. The trial court appears to have been referring to Rule 412 of the Texas Rules of Evidence, which excludes "evidence of specific instances of an alleged victim's past sexual behavior" except in specific instances. See Tex. R. Evid. 412(b). 8. Remarkably, a different--though unraised--potential trigger for the rule of optional completeness may have been overlooked. Comparing Light's written report with her trial testimony, we note that Light's testimony, when it recounted the victim's answers that Bryant "did it a lot" and that he "did it in the front," may have been misleading in that the written report suggests contextually that those two allegations may have been directed at the victim's natural father, not Bryant. The report actually reads as follows: "Well, um, my stepdaddy, he raped me while I was in Paris. . . ." When you say rape, what do you mean? "He tried to put his dingy in my private spot." Your front private spot or back private spot? "Front." Did he get it all the way in? "No." Did it hurt? "Yes." Is there anything else you want to tell us? "My real daddy did it too." When? "In 2000 and all my life. He killed himself in 2000." Did he do it a lot? "Yes." Did he do it in the front? "Yes." What is your stepdaddy's name? "Gene Bryant." What is your daddy's name? "Dale . . ." (Emphasis added.) At a minimum, the identity of the person who did "it a lot" and who did "it in the front" is unclear from the report's context. Light's testimony certainly attributes those acts to Bryant. In that regard, Light's testimony may have "opened" the issue of who did "it a lot" and who did "it in the front" and may have provided an opportunity, had it been noticed, to get clarifying testimony admitted under the rule of optional completeness. Because, at trial, that issue was not preserved for appeal, we do not decide that issue here. 9. This Court has recently addressed variations on the theme of optional completeness in several opinions, including Walters; Ziolkowski v. State, No. 06-06-00030-CR, 2007 WL 967029 (Tex. App.--Texarkana Apr. 3, 2007, no pet.); Sneed v. State, 209 S.W.3d 782, 792 (Tex. App.--Texarkana 2006, no pet.). 10. In a footnote, the court announced that cases which broadly stated "that the whole conversation may be shown is not supported by the language of the statute and should not be relied upon in the future." Sauceda v. State, 129 S.W.3d 116, 123 n.5 (Tex. Crim. App. 2004) (citing Tex. R. 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Memorandum Opinion by Justice Moseley MEMORANDUM  OPINION Jamie Lee Bledsoe has filed with this Court a “Motion in Advice,” which we interpret as a petition for mandamus relief. Bledsoe asks this Court to order the 71st Judicial District Court of Harrison County, Texas, to acknowledge the filing of Bledsoe’s motion for judgment nunc pro tunc and to provide Bledsoe with a file-marked copy of this motion. The proceedings giving rise to this petition begin with Bledsoe’s filing a petition for writ of mandamus, asking this Court to order the trial court to grant his previously filed motion for judgment nunc pro tunc, in order to correctly credit Bledsoe with actual time served for which no credit was given. This Court’s opinion issued on April 8, 2011, denying Bledsoe’s petition for the reason that Bledsoe failed to furnish a record sufficient to support his claim for mandamus relief. See Tex. R. App. P. 52.7(a). Specifically, Bledsoe failed to furnish this Court with evidence that the motion for judgment nunc pro tunc was filed in the trial court, together with documentation verifying the dates and events (short of a copy of an indictment for burglary of a habitation) alleged to be the basis of Bledsoe’s time credit claim. Bledsoe filed a second motion for judgment nunc pro tunc on May 2, 2011. This Court has been furnished with a file-marked copy of that motion by the clerk of the trial court. Bledsoe’s request for a file-marked copy of his motion for judgment nunc pro tunc was made in order that he would then be in a position to ultimately provide this Court with a file-marked copy of that motion. Because that purpose has been accomplished, Bledsoe has received the relief requested in his petition.[1] Accordingly, we dismiss Bledsoe’s petition for writ of mandamus as moot. Bailey C. Moseley Justice Date Submitted: May 17, 2011 Date Decided: May 18, 2011 Do Not Publish [1]Because it has become apparent that there will be no ruling on Bledsoe’s motion for judgment nunc pro tunc in the absence of a submitted order, Bledsoe would be well served to submit an order to the clerk of the trial court and to the trial court, seeking a ruling on his motion for judgment nunc pro tunc, together with a specific request to the trial court seeking a ruling on the motion. We do not condone the practice of refusing to rule on petitioner’s motion in the absence of a submitted order, especially in view of the fact that Bledsoe is incarcerated.