Christian Reinhard v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00320-CR Christian Reinhard, Appellant v. The State of Texas, Appellee From the 13th District Court Navarro County, Texas Trial Court No. 28,970 MEMORANDUM Opinion Appellant Christian Reinhard was indicted on one count of aggravated sexual assault of a child, M. A jury found Reinhard guilty, and after he pled true to an enhancement paragraph alleging a prior felony conviction of aggravated sexual assault, the trial court sentenced Reinhard to life imprisonment. In two issues, he complains of the admission of extraneous offense evidence and the factual sufficiency of the evidence. We will affirm. Sufficiency of the Evidence We will first address Reinhard’s second issue, which generally challenges the sufficiency of the evidence. Because Reinhard seeks a reversal of his conviction and a remand for a new trial, we will treat his sufficiency challenge as a challenge to the factual sufficiency of the evidence. In a factual-sufficiency review, we view all of the evidence in a neutral light and consider only whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. Zuniga also reminds us that we must defer to the jury’s determination. See id. at 481. (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. Reinhard was indicted for the felony offense of intentionally or knowingly causing the penetration of the sexual organ of M., a child under the age of fourteen and not his spouse, with his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003 & Supp. 2004-05). M. testified that Reinhard began having sexual contact with her when she was eleven or twelve years old, and it escalated from digital penetration to oral sex, and finally to sexual intercourse when she was younger than fourteen. In 1999, when she was thirteen, Reinhard began having sexual intercourse with her in which his sexual organ penetrated her sexual organ. She testified several other times that the intercourse occurred before she was fourteen, but on cross-examination, in a series of confusing questions and answers, M. appeared to testify that intercourse with penetration did not begin until the summer of 2000, after she had turned fourteen. However, on redirect examination, she remembered that she was thirteen when intercourse with penetration began because she recalled that on the night of New Year’s Eve 1999, she told a friend about the sexual intercourse. And on recross-examination, she firmly reiterated that intercourse began in 1999, when she was thirteen. Considering all of the evidence in a neutral light, we find that the jury was rationally justified in finding Reinhard guilty. Zuniga, 144 S.W.3d at 484. The evidence supporting the finding of guilt, considered alone, was not too weak to support the finding beyond a reasonable doubt, and the contrary evidence was not so strong that guilt could not be proved beyond a reasonable doubt. See id. at 484-85. It was the jury’s role to determine M.’s inconsistent testimony on cross-examination, which was clarified on redirect examination. We defer to the jury’s determination of the credibility of the witnesses, and we may not ignore evidence that supports the jury’s verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Cain, 958 S.W.2d at 407. The evidence was factually sufficient, and we overrule Reinhard’s second issue. Extraneous Offense Evidence In his first issue, Reinhard complains that fundamental error occurred when unobjected-to extraneous offense evidence was elicited from M. by defense counsel, as follows: Q. In detail you told her [M.’s mother] what happened, or just that you and Chris had an argument? A. I had told her that Chris had done something to me that he had done to the previous girls that he molested. Q. So you pretty much clued her in and told her everything that happened. A. Pretty much. I just, I didn’t give her details. I just told her that he had done to me what he had done to the other girls. Reinhard did not object to this testimony, which arguably was invited, nor did he request an instruction to disregard or move for a mistrial, either of which was essential to preserve a complaint. Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004). Reinhard has not preserved his first issue for appellate review. See id.; Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); Chambers v. State, 903 S.W.2d 21, 31-32 (Tex. Crim. App. 1995); Grider v. State, 69 S.W.3d 681, 686 (Tex. App.—Texarkana 2002, no pet.); Gregory v. State, 56 S.W.3d 164, 175-76 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d, improvidently granted); see also Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (pretrial motion in limine does not preserve complaint). Acknowledging the failure to complain in the trial court, Reinhard thus urges that the testimony constituted fundamental error that could be raised for the first time on appeal. See Tex. R. Evid. 103(d). The Court of Criminal Appeals has identified a limited number of errors in three categories that are considered “fundamental.” They are (1) the denial of absolute, systemic requirements, (2) the violation of rights that are waivable only, and (3) errors recognized by the legislature as fundamental. See Saldano v. State, 70 S.W.3d 873, 887-88 (Tex. Crim. App. 2002) (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)). In Saldano, the Court enumerated the following “fundamental errors”: absence of jurisdiction over the person of the defendant; absence of subject-matter jurisdiction; prosecution under an ex post facto law; denial of the right to counsel; denial of the right to a jury trial; denial of 10 days’ preparation before trial for appointed counsel; holding trials at a location other than the county seat; comments by a trial judge that taint the presumption of innocence; and jury charge errors resulting in egregious harm. See id. at 887-89. Because the nonresponsive testimony does not amount to fundamental error, we overrule Reinhard’s first issue. Conclusion Having overruled Reinhard’s two issues, we affirm the trial court’s judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed October 26, 2005 Do not publish [CRPM] ust be treated as an inseparable whole, we likewise remand the remaining causes of actions to the trial court without any instructions. See Tex. R. App. P. 81(b)(1); Cochran v. American Sav. & Loan Ass'n, 586 S.W.2d 849, 850 (Tex. 1979). We do not discuss any authority cited by the parties because it pertains only to the merits of the summary judgment. BOB L. THOMAS Chief Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance (Justice Vance dissenting) Reversed and remanded Opinion delivered and filed August 4, 1993 Publish