in Re Randy Gates

IN THE TENTH COURT OF APPEALS No. 10-06-00402-CV In re randy gates Original Proceeding MEMORANDUM Opinion The petition for writ of mandamus is denied. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents without a separate opinion, but notes that a candidate is elected by virtue of having received the majority of the votes cast, not by virtue of the prima facie evidence thereof in the form of a certificate of election delivered by the canvassing authority. See Tex. Elec. Code Ann. § 67.016(a),(c), (e) (Vernon 2003); Gonzalez v.Duran, 250 S.W.2d 322, 324 (Tex. Civ. App.—San Antonio 1952, writ ref’d) (quoting DeShazo v. Davis, 162 S.E. 320, 321 (Va. 1932) (orig. proceeding)); Wells v. Comm’rs’ Court, 195 S.W. 608, 609 (Tex. Civ. App.—El Paso 1917, writ ref’d); Dean v. State ex rel. Bailey, 88 Tex. 290, 295, 30 S.W. 1047, 1048 (1895) (certified question); Ewing v. Duncan, 81 Tex. 230, 236, 16 S.W. 1000, 1002 (1891); Beeler v. Loock, 135 S.W.2d 644, 647 (Tex. Civ. App.—Galveston 1939, writ dism’d w.o.j.) (interpreting 1925 Tex. Rev. Civ. Stat. art. 3032 (current version at Tex. Elec. Code Ann. § 67.016(e))) (“It is not the certificate that confers the right on the candidate to the office, but the highest vote.”).) Petition denied Opinion delivered and filed January 10, 2007 [OT06] jury then assessed DeLeon’s punishment at confinement in the Texas Department of Criminal Justice-Institutional Division for twenty-five years for each aggravated sexual assault charge and twenty years for each indecency with a child charge. DeLeon appeals on two issues. He contends (1) the trial court erred in excusing a prospective juror because he could not write “very good” and (2) the court erred in failing to allow testimony regarding the victim’s prior sexual activities. We conclude that although the trial court erred in sua sponte excusing the potential juror, DeLeon has failed to establish harm necessary to require reversal. Furthermore, the trial court properly excluded the offered testimony in accordance with Rule 412 of the Texas Rules of Evidence. Thus, we will affirm the judgment. BACKGROUND FACTSIn 1990, DeLeon and his future wife, Sylvia, moved in together. Sometime during the following year, DeLeon began molesting A.H., Sylvia’s five-year-old daughter from a prior relationship. The molestations continued over a five-year period. DeLeon threatened A.H. to insure that she would not tell anyone. After a violent altercation in 1996, Sylvia decided that she and the children would leave DeLeon and stay in a women’s shelter. At that time A.H. informed her mother of the assaults. A.H. was taken to Cook Children’s Medical Center in Fort Worth where she was examined by Virginia Caldwell, a registered nurse and coordinator of the hospital’s child sexual abuse clinic. As a result of the examination, Caldwell contacted the Johnson County Sheriff’s Office with the allegations of sexual abuse against DeLeon. EXCUSING VENIREMAN In his first point of error, DeLeon claims the trial court erred by sua sponte excusing venireman Cerna for cause because of his difficulty with writing. Tex. Code Crim. Proc. Ann. art. 35.16(a)(11) (Vernon 1989). DeLeon contends the trial court failed to inquire into the prospective juror’s ability. The following colloquy took place between the trial judge, Cerna, and the defense attorney: [THE COURT]: How are you doing? [MR. CERNA]: Pretty good. [THE COURT]: And is it Mr. Cerna? [MR. CERNA]: Yes, Sir. [THE COURT]: What can I do for you, Mr. Cerna? [MR. CERNA]: My writing skills and communication skills are not very good. [THE COURT]: Okay. [MR. CERNA]: That’s the only thing. [THE COURT]: You think that might hold you back a little bit in serving as a juror? [MR. CERNA]: It’s my first time up in here so I don’t know. [THE COURT]: Okay, when you say you’re not very good, what do you mean? Do you read and write English? [MR. CERNA]: I can read but write. I cannot write very good. [THE COURT]: I’m going to go ahead and excuse you Mr. Cerna. [MR. CERNA]: Okay. [MR. GILFEATHER]: Your Honor, note our exception. [THE COURT]: Okay, I appreciate you coming up. Do you need a work receipt? [MR. CERNA]: Yes. [THE COURT]: If you go across. As you go out those two doors, go straight across that hallway and they’ll give you a note to get back to work. [MR. CERNA]: Okay. Thanks a lot. [MR. GILFEATHER]: For the record, Judge, we just believe that he was qualified under the statute. [THE COURT]: Okay. Applicable Law A venireman is qualified to serve on a jury unless he is subject to a challenge for cause under article 35.16 of the Texas Code of Criminal Procedure. Mayo v. State, 4 S.W.3d 9, 10 (Tex. Crim. App. 1999); Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992). “A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury.” Perez v. State, 11 S.W.3d 218, 220 (Tex. Crim. App. 2000). A trial court should not on its own motion excuse a prospective juror for cause unless that juror is absolutely disqualified from serving on the jury. Butler, 830 S.W.2d at 132; Green v. State, 764 S.W.2d 242, 246 (Tex. Crim. App. 1989); Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App. 1989). A prospective juror is absolutely disqualified, according to article 35.19 of the Code of Criminal Procedure, only if the juror: (1) has been convicted of theft or any felony, (2) is under indictment or other legal accusation for theft or any felony, or (3) is insane. Perez, 11 S.W.3d at 220. Because none of the absolute disqualifications applied to Cerna, the trial judge erred in sua sponte excusing him. Green, 764 S.W.2d at 246. When a trial court sua sponte excuses a prospective juror who is not absolutely disqualified, the error will require reversal only on a showing of harm to the defendant. Id.; Tex. R. App. P. 44.2(b). If the trial court sua sponte excludes a qualified juror, a defendant can show harm by establishing that the state exhausted its peremptory challenges. Green, 764 S.W.2d at 246. The reason for this is if the trial court erroneously excuses a qualified juror, then the State has in effect received the benefit of an additional peremptory strike. Id. Application Here, the trial court excused Cerna because he could not write “very good.” However, article 35.16(a)(11) permits a challenge for cause only if the venireman “cannot read or write.” Tex. Code Crim. Proc. Ann. art. 35.16(a)(11). Consequently, Cerna was qualified to serve on the jury according to article 35.16(a) of the Code of Criminal Procedure. Mayo, 4 S.W.3d at 10. However, despite this error we conclude that DeLeon has failed to establish harm necessary to require reversal. Green, 764 S.W.2d at 246; Tex. R. App. P. 44.2(b). Although the trial court erred in excusing the potential juror, the State used only nine of its allotted ten peremptory challenges. Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon Supp. 2000). As a result, the State did not exhaust its peremptory strikes and in effect did not receive the benefit of an additional peremptory strike. Green, 764 S.W.2d at 246. Therefore, DeLeon has not established harm regarding the trial court's lack of authority in sua sponte excusing Cerna. Id. Issue one is without merit. EVIDENCE OF PAST SEXUAL BEHAVIORDeLeon contends the court erred in refusing to allow him to introduce evidence of the victim’s past sexual history. The court conducted a hearing outside the presence of the jury, in which DeLeon testified to six prior instances of sexual behavior allegedly committed by A.H. After hearing arguments from both sides, the trial court decided to allow testimony concerning only two of the alleged incidents. Applicable Law Generally, a victim’s sexual reputation is not admissible in a prosecution for sexual assault. Tex. R. Evid. 412(a). However, Rule 412(b)(2) of the Rules of Evidence permits a court to admit specific instances of a victim’s past sexual behavior when it is evidence: (A) that is necessary to rebut or explain scientific or medical evidence offered by the State; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted. Tex. R. Evid. 412(b)(2); Stephens v. State, 978 S.W.2d 728, 732 (Tex. App.—Austin 1998, pet. ref’d). Even if the evidence falls within the enumerated categories of Rule 412(b)(2), the court must further find that the probative value outweighs the danger of unfair prejudice. Id. 412(b)(3); see Holloway v. State, 751 S.W.2d 866, 870 (Tex. Crim. App. 1988). We review a court's evidentiary rulings under an abuse-of-discretion standard and will reverse only when the court's ruling falls outside the "zone of reasonable disagreement.” Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Application In a hearing outside the presence of the jury, DeLeon testified to the following: (1) in 1988 or 1989, he saw J.H., A.H.’s brother, inappropriately touch another girl; (2) in 1989 or 1990, J.H. gave A.H. a “hickey”; (3) in 1992 A.H. gave J.H. a “hickey”; (4) in 1995 or 1996, he saw A.H. naked on top of J.H. in J.H.’s bedroom; (5) in 1996, he saw A.H. and J.H. in a barn undressed; and (6) Sylvia told him that she once caught J.H. taking off A.H.’s diaper. The court allowed testimony before the jury about the third and fourth incidents. DeLeon contends that under Rule 412(b)(2)(C), the other evidence of A.H.’s past sexual behavior establishes her motive to fabricate the accusations. Tex. R. Evid. 412(b)(2)(C). According to DeLeon, A.H. and Sylvia made up the allegations against him to prevent him from contacting authorities about J.H.’s assaults on A.H. DeLeon contends this was done to insure that the brother would not be removed from the family. However, Rule 412 does not contemplate the admission of this type of evidence when the danger of unfair prejudice outweighs its probative value. See Tex. R. Evid. 412(b); Stephens, 978 S.W.2d at 732. After hearing arguments from both sides, the trial court properly disallowed Sylvia’s hearsay statement and testimony of the incident which did not involve A.H. Of the remaining four instances, the trial court allowed testimony concerning only one of the “hickey” incidents and one of the incidents where DeLeon said he saw A.H. and J.H. together undressed. Given that the court allowed testimony about similar incidents, we cannot say that the rulings fell outside the "zone of reasonable disagreement.” Jones, 982 S.W.2d at 394. Consequently, the trial court did not abuse its discretion in excluding part of the evidence of A.H.’s past sexual behavior. Id. Issue two is without merit. We affirm the judgment. BILL VANCE Justice Before Chief Justice Davis Justice Vance, and Justice Gray Affirmed Opinion delivered and filed July 26, 2000 Do not publish