Roy Eugene Ross v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-517 CR ____________________ ROY EUGENE ROSS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 15,937 MEMORANDUM OPINION A jury convicted Roy Eugene Ross of two counts of sexual assault of a child and two counts of indecency with a child. For each count, the jury sentenced Ross to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. The sentences run concurrently. Ross appeals raising twelve points of error. Because all issues of law are settled, our opinion only advises the parties of the Court's decision and the basic reasons for it. See Tex. R. App. 47.1. In point of error one, Ross contends the trial court erred by instructing the jury on Counts III and IV that the term "on or about" meant any day before October 6, 2000 and after October 7, 1990, because that instruction allowed the jury consider events occurring after the seventeenth birthday of one of the alleged victim's, J.R., in August 1998. Ross' point of error on appeal does not comport with the objection made at trial. Accordingly, nothing is presented for review. See Tex. R. App. P. 33.1(a). The jury charge required the jury to find that J.R. was under the age of seventeen on the date Ross engaged in sexual contact with J.R. Therefore, the charge was not fundamentally erroneous, as argued by Ross. Point of error one is overruled. Point of error two claims the trial court erred in that the jury instructions allowed conviction for events occurring on or after J.R.'s seventeenth birthday, constituting a fatal variance between the proof required by the indictment and the jury charge. The indictment alleged in Counts III and IV that when the offenses were committed J.R. was a child younger than 17 years. The charge to the jury on Counts III and IV, in both the abstract and application paragraphs, comported with the indictment and required the jury to find J.R. was a child younger than seventeen in order to convict Ross of indecency with a child. Accordingly, there is no variance between the proof required and the charge to the jury did not allow for conviction for events occurring after J.R.'s seventeenth birthday. Point of error two is overruled. Point of error three argues the trial court erred in instructing the jury to convict for any date within a ten-year period when neither Count I nor Count IV of the indictment were proven to have occurred on an ascertainable date. In both cases, Ross complains the State failed to prove the offenses occurred prior to the seventeenth birthday of either C.R. or J.R. Regarding Count I, the record establishes C.R. was 14 or 15 years at the time of the offense. As to Count IV, there was evidence presented that the offense occurred before J.R.'s seventeenth birthday. Thus the State did establish the offenses occurred prior to C.R.'s and J.R.'s seventeenth birthdays. Point of error three is overruled. In point of error four, Ross alleges the trial court erred in instructing the jury by its definition of "on or about." Ross argues the definition "changed" the dates alleged in the indictment. The indictment alleged "on or about" in all four counts. It is well settled that the "on or about" language allows the State to prove a date other than the one alleged as long as the date proven is anterior to the presentment of the indictment and within the statutory limitation period. See Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). The trial court's definition comports with Wright. Point of error four is overruled. Point of error five contends the trial court erred in allowing the State to call C.R. as a witness, solely for the purpose of impeaching her testimony with a prior inconsistent statement. Trial counsel objected "to this testimony for any purpose other than impeachment and would request a limiting instruction to that." Subsequently, a limiting instruction was given to the jury. We generally presume that a jury follows the instructions given by the trial judge. See Lafleur v. State, 84 S.W.3d 309, 312 (Tex. App.--Beaumont 2002, pet. filed). Given the testimony of J.R., there is no showing that the jury ignored the instruction as Ross claims. Point of error five is overruled. Point of error six alleges the evidence is factually insufficient to support Ross' conviction under Count I. Ross claims the testimony of C.R. and J.R. is too unreliable to constitute sufficient evidence to support his conviction under this count. C.R.'s denial at trial of the assault by Ross was impeached by her prior statement. The jury, as trier of fact, is the exclusive judge of the credibility of the witnesses, the weight to be given their testimony, and may accept or reject all or any part of the testimony of any witness. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Our review of the evidence for factual sufficiency must be "appropriately deferential" to the factfinder's determination to avoid substituting our judgment over that of the trier of fact. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Viewing all of the evidence without the prism of "in the light most favorable to the prosecution," we find the jury's verdict under Count I is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 135. Point of error six is overruled. In point of error seven Ross argues the trial court erred in instructing the jury about parole eligibility. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (Vernon Supp. 2003). Ross claims the instruction violates his right to due process because under a federal grant-in-aid statute he is actually required to serve eighty-five percent of his sentence to be eligible for parole, rather than fifty percent, as the jury was instructed. If the law of the State of Texas fails to comport with the federal statute, the result would be to render the State ineligible for funds, not to alter the sentencing scheme enacted by the Texas legislature. Accordingly, the crux of Ross' claim is without merit and point of error seven is overruled. In point of error eight Ross argues the trial court erred in instructing the jury per Tex. Code Crim. Proc. Ann. art. 37.07, section 4, about good conduct time. Ross' arguments have been rejected by this court and the Court of Criminal Appeals. See Luquis v. State, 997 S.W.2d 442, 443-44 (Tex. App.--Beaumont 1999), aff'd, 72 S.W.3d 355 (Tex. Crim. App. 2002). Point of error eight is overruled. Point of error nine contends the trial court erred in failing to grant Ross' motion for new trial upon discovery the State had failed to disclose the identity of a material witness, Alvie Lee Austin. We characterize Ross' argument as charging a Brady violation occurred. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, Ross fails to identify how knowledge of the "existence" of Austin and his victim constituted or would have led to favorable evidence in his case. Our confidence in the outcome of the proceeding against Ross is not undermined by the mere existence of other sex offenders in proximity to the victims. Accordingly, we are unable to say the trial court's denial of Ross' motion for new trial based on the failure to disclose Brady material constituted an abuse of discretion. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). Point of error nine is overruled. Ross' tenth point of error claims the trial court erred in submitting jury instructions on both Counts III and IV because they were capable of being the same offense, a double jeopardy violation. Ross' argument is based on the alleged dates of the two offenses and the use of "on or about." It is well settled that "on or about" allows the State to prove a date other than the one alleged as long as the date proven is anterior to the presentment of the indictment and within the statutory limitation period. See Wright, 28 S.W.3d at 532. The evidence in this case established that Ross had numerous sexual contacts with J.R. from May of 1991 through 1994. Therefore, the evidence in this case is not tied to the specific dates alleged in the indictment, but to that time period . The evidence shows Ross committed the alleged criminal acts on at least two separate occasions during this time, thus the trial court's submission of two counts was proper. See generally DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.--San Antonio 1999, pet. ref'd). Point of error ten is overruled. Point of error eleven claims trial counsel rendered ineffective assistance. To prevail, an appellant must demonstrate trial counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Allegations of ineffective assistance must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The presumption of reasonable effectiveness cannot ordinarily be overcome absent evidence in the record of the attorney's reasons for his conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994). Ross contends counsel erred "in allowing the jury to consider acts up to October 6, 2000, [the date the indictment was entered] which included the videotape . . . via their instructions under Counts III and IV . . . since [J.R.] turned [seventeen] in August, 1998." It has not been established on appeal that the videotape was inadmissible so as to render trial counsel's failure to object to it deficient. No other "acts" are identified and we are not referred to any in the record. The jury was clearly instructed that it must find J.R. was a child younger than seventeen when the acts occurred in order to convict Ross. Ross complains regarding admission of C.R.'s prior inconsistent statement that trial counsel "only objected to its use 'for any purpose other than impeachment.'" There has been no showing on appeal that C.R.'s statement was not admissible for purposes of impeachment and the jury was instructed not to use it for any other purpose. Ross claims trial counsel was deficient in failing to have C.R. physically examined. Trial counsel gave his reasons for not requesting an examination. Ross' brief asserts trial counsel's basis was incorrect but provides no record references in support. Ross contends trial counsel was not adequately prepared to question C.R. but fails to identify any benefit from more preparation. Ross complains trial counsel failed to file any Brady or discovery motions. At the hearing on Ross' motion for new trial, counsel testified that the District Attorney's office in Polk County had an open file policy and he had never had a problem on a "Brady matter." As noted in our discussion of point of error nine, the "existence" of Alvie Austin was never shown to be exculpatory evidence. Thus a Brady violation has not been raised. Ross contends trial counsel failed to adequately investigate potential witnesses, resulting in no viable defense. Ross implies a defense that Alvie Austin was the perpetrator. There is no evidence supporting such an inference. None of the victims implicated Austin. The fact that Austin was a member of the household and is now a convicted sex offender does not indicate that he, rather than Ross, assaulted the three victims. Rather, it might have led the jury to conclude Austin was also a victim. Ross alleges trial counsel failed to call favorable witnesses, specifically Rachel Ross or Roy Ross, Jr. The record fails to demonstrate the testimony of either would have been favorable and trial counsel testified he did not call Roy Jr. because "I think he would have made a horrible impression on the jury." Ross contends trial counsel failed to consult or seek an expert either to assess Ross' competency to stand trial following a head injury or to consider the possibility of SAID (1) syndrome. The evidence adduced at the hearing on Ross' motion for new trial does not demonstrate the viability of either course or that either would have resulted in a different outcome. Ross argues trial counsel erred in failing to object to testimony that he assaulted two other children, over whom no charges were brought, and failed to request a limiting instruction for these extraneous offenses. Ross does not identify for what purpose the testimony was admissible, so that a limiting instruction was appropriate. At the hearing on the motion for new trial, counsel was not questioned regarding his failure to object. Thus, the record is silent as to trial counsel's reasons and we are unable to conclude that trial counsel's performance was deficient. See Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). Ross complains of trial counsel's failure to request a Huizar instruction in the jury charge on punishment. See Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000). Ross does not argue, much less demonstrate, that the jury would have assessed a different sentence had the instruction been given. No extraneous offenses were introduced during the punishment phase, the extraneous offenses Ross complains of were admitted during guilt/innocence and the instruction was given in that charge. While that does not eradicate the error, it does impact the effect. We cannot conclude that "but for" counsel's failure, the jury would not have assessed the sentence it did. Trial counsel testified he did not object to the admission of the tape because it was admissible. No further query was made into trial counsel's reasoning. Because the record is silent, we cannot say trial counsel performed deficiently. Ross complains of trial counsel's failure to request an outcry hearing but fails to refer this court to the record wherein it is established that any of the children made an outcry or that any such statements were admitted into evidence. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003). He also fails to demonstrate how an outcry hearing would have affected the proceedings. Considering trial counsel's performance as a whole, we cannot conclude it was deficient or that but for any error there is a reasonable probability the result of the proceeding would have been different. Point of error eleven is overruled. In his final point, Ross argues the trial court erred in failing to include an instruction to the jury at the punishment stage on the "reasonable doubt" burden of proof for extraneous offenses. At the close of the guilt/innocence phase, the jury was instructed the burden of proof for extraneous offenses was "beyond a reasonable doubt." The charge to the jury at punishment did not include such an instruction. The trial court erred in failing to give, sua sponte, a reasonable-doubt instruction regarding the extraneous offenses. See Huizar, 12 S.W.3d at 484. See also Allen v. State, 47 S.W.3d 47, 50 (Tex. App.--Fort Worth 2001, pet. ref'd). Reversal is required if egregious harm resulted. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on reh'g). The harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction. See Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). We assess the degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole. Id. In that light, we cannot conclude the trial court's omission is so egregious and created such harm that Ross did not receive a fair and impartial trial. The jury's assessment of punishment, while the maximum, is within the permitted range and justified by the evidence presented. Point of error twelve is overruled. The judgment of the trial court is AFFIRMED. PER CURIAM Submitted on November 15, 2002 Opinion Delivered December 19, 2002 Do not publish Before Walker, C.J., Burgess, and Gaultney, JJ. 1. Sexual Allegations in Divorce.