King, Ernest v. State

Affirmed and Memorandum Opinion filed April 17, 2003 Affirmed and Memorandum Opinion filed April 17, 2003. In The Fourteenth Court of Appeals ____________ NOS. 14-02-00204-CR & 14-02-00205-CR ____________ ERNEST LEE KING, Appellant V. THE STATE OF TEXAS, Appellee _________________________________________________________________ On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 864064 & 889816 _________________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Ernest Lee King appeals his two convictions for aggravated sexual assault of a child. In twelve issues, he contends the trial court erred in failing to properly instruct the jury, his trial counsel was ineffective, and the evidence was legally and factually insufficient to support his convictions. We affirm. I. Factual and Procedural Background The complainant, C.R., was five years old at the time of the offenses alleged in the indictments. Appellant was the boyfriend of C.R.’s mother. In late October, 2000, C.R.’s maternal grandmother, Janis Adetu, was driving C.R., and C.R.’s younger sister, P.K., to Houston after a visit to Port Arthur, Texas. During the trip, C.R. began to cry and told her grandmother that appellant had sexually assaulted her. C.R. recounted that the assault occurred on a day she had stayed home from school. C.R. further explained that on that day, appellant, who had stayed at home with her, put his penis in her mouth and in her vagina. C.R. told her grandmother that appellant threatened to do the same thing to her sister if she told anyone what had happened. After hearing this outcry, C.R.’s grandmother took her to a doctor at Texas Children’s Hospital. At trial, C.R. testified that appellant touched her anus with his penis, placed his penis in her vagina and mouth, kissed her on the mouth with his tongue, and touched her chest with his tongue. C.R. testified those events took place in her home on her mother’s bed. Dr. Stephanie Kennebeck, who examined C.R. on October 22, 2000, in the emergency room at Texas Children’s Hospital, testified that a vaginal examination revealed C.R.’s hymen was not intact, which indicated there had been vaginal penetration. Dr. Kennebeck also read a portion of the medical report taken on the day C.R. was seen in the hospital. This report contained statements that appellant had forced C.R. to watch “nasty” movies, had made her touch his penis with her hand, had awakened her by touching her private parts and had told others “[h]e f----- [C.R.] and [P.K.]”[1] Dr. Kennebeck reviewed previous medical records and determined that C.R. was examined in July 2000, for vaginal discharge and those records indicated C.R.’s hymen was intact at that time. Two to three weeks prior to C.R.’s outcry, appellant attended a party at Janis Adetu’s home. Appellant told people at the party, “I’m f***ing [C.R.].” Kelly Jeb, a Children’s Assessment Center (“CAC”) case worker testified that she talked with appellant, and he admitted telling some family members at Adetu’s home that he had “messed with” C.R. and P.K. Appellant, however, told Jeb that what he said at the party was false and that he did not know what he was saying at the time because he was under the influence of narcotics. The State charged appellant with aggravated sexual assault of a child, alleging appellant had placed his penis in C.R.’s mouth and in her vagina. See Tex. Pen. Code §§ 22.021(a)(1)(B) & 22.021(a)(2)(B). The jury found appellant guilty and assessed punishment at forty years’ confinement in each case. After denying the State’s motion to cumulate the sentences in the two cases, the trial court sentenced appellant to forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In twelve issues, appellant contends the trial court erred in failing to give a reasonable-doubt instruction at the punishment phase of trial and in failing to charge the jury at the guilt-innocence phase on the limited use of extraneous offenses. Appellant further contends that his trial counsel rendered ineffective assistance and that the evidence is legally and factually insufficient to support his convictions. II. Analysis and Discussion A. Did the trial court err in failing to sua sponte give a reasonable-doubt instruction during the punishment phase of trial? In his first issue, appellant contends the trial court erred in failing to charge the jury during the punishment phase that it could consider extraneous misconduct in sentencing appellant only if the jury believed beyond a reasonable doubt that appellant committed this extraneous misconduct. Appellant points out evidence of the following acts, alleged to be extraneous offenses, admitted at the guilt-innocence phase of trial: (1) touching C.R.’s breasts (2) touching C.R. between the legs (3) touching C.R.’s buttocks (4) touching C.R.’s buttocks with his penis (5) touching C.R. between the legs with his penis (6) placing appellant’s penis in C.R.’s vagina (7) touching C.R.’s chest with appellant’s tongue (8) placing appellant’s tongue in C.R.’s mouth while kissing (9) placing appellant’s penis in C.R.’s mouth (10) making C.R. watch “nasty” movies (11) making C.R. touch appellant’s penis with her hand (12) awakening C.R. by touching her private parts (13) a statement that appellant said, “He f----- . . . [P.K.]” At the beginning of the punishment phase of trial, the State re-offered all evidence from the guilt-innocence phase of trial. Therefore, appellant argues, the trial court was obligated to instruct the jury sua sponte that the jury could not consider evidence of the above conduct unless the jury determined beyond a reasonable doubt that appellant committed the conduct. When reviewing alleged charge error, we must determine, first, whether error actually exists in the charge, and, second, whether sufficient harm resulted from the error to require reversal. Hutch v. State, 922 S.W.2d 166, 170–71 (Tex. Crim. App. 1996). Before evidence of extraneous misconduct may be considered in assessing punishment, the misconduct must be proved beyond a reasonable doubt. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1); see also Huizar v. State, 12 S.W.3d 479, 483–84 (Tex. Crim. App. 2000). As appellant correctly points out, a trial court is required to instruct the jury sua sponte on this burden of proof regarding extraneous misconduct. See Huizar, 12 S.W.3d at 483–84. Appellant first argues that, because the two cases were tried together, the evidence that appellant placed his penis in C.R.’s mouth is evidence of extraneous misconduct at the punishment phase of the vaginal-penetration case, and the evidence that appellant placed his penis in C.R.’s vagina is evidence of extraneous misconduct at the punishment phase of the oral-penetration case. We disagree. An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996). In a consolidated case, evidence of the misconduct charged in one indictment is not evidence of extraneous misconduct as to any of the indictments in the consolidated case. See Meador v. State, 941 S.W.2d 156, 162 (Tex. App.—Corpus Christi 1996, pet. ref’d). Therefore, the evidence of vaginal and oral penetration of C.R. by appellant was evidence of misconduct shown in the charging papers and was not extraneous misconduct. See id. Furthermore, the first nine acts listed by appellant as extraneous offenses were admissible as “same transaction contextual evidence.” See Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997); Camacho v. State, 864 S.W.2d 524, 531–32 (Tex. Crim. App. 1993). Such evidence imparts to the trier of fact information essential to understand the context and circumstances of events which, although legally separate offenses, are factually blended or interwoven. Camacho, 864 S.W.2d at 532. Same transaction contextual evidence is admissible to illuminate the nature of the crime alleged. Id. The first nine acts appellant cites came from the complainant’s testimony concerning the acts charged in the indictments. No reasonable doubt instruction is required for those acts, which are same transaction contextual evidence. See Garza v. State, 2 S.W.3d 331, 334–35 (Tex. App.—San Antonio 1999, pet. ref’d); Norrid v. State, 925 S.W.2d 342, 349 (Tex. App.—Fort Worth 1996, no pet.). Therefore, as to the first nine items listed above, we hold that the trial court did not err when it failed to give sua sponte a reasonable-doubt jury instruction regarding extraneous misconduct evidence during the punishment phase. The remaining four items (10 – 13) were admitted only through an exhibit containing the medical report taken at the time C.R. made the outcry. After reviewing the evidence, we conclude that these items are not same transaction contextual evidence because they do not provide the jury information essential to understand the context and circumstances of events that were factually blended or interwoven with the events to which C.R. testified. See Camacho, 864 S.W.2d at 532. Because this evidence was admitted, the trial court erred in failing to sua sponte give the jury a reasonable-doubt instruction. See Huizar, 12 S.W.3d at 483–84. However, because appellant failed to object to this error, he must show that it caused him to suffer egregious harm in order to secure a reversal on this ground. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). “Egregious harm” exists when the error was so harmful as to deny the defendant “a fair and impartial trial.” Tex. Code Crim. Proc. art. 36.19; Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). To determine whether appellant suffered egregious harm, we must view the error in light of the entire jury charge, state of the evidence, argument of counsel, and any other relevant information revealed by the record as a whole. Mann, 964 S.W.2d at 641.[2] Any harm suffered must be actual and not merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). With regard items (10) – (12), there was no conflicting evidence. The allegations that appellant forced C.R. to watch “nasty” movies, made her touch his penis, and awakened her by touching her private parts were contained in the medical report taken at the time C.R. made the outcry. Appellant presented no contrary evidence. With regard to the last item — the statement in the report that appellant said, “He f----- . . . [P.K.],” appellant did not dispute that he made the statement. Moreover, the CAC case worker testified that appellant said he told the family members that he had been “messing with . . . [P.K.].” Appellant also told the case worker that what he had said was not true and that he did not know what he was saying when he made that incriminating statement. The range of punishment for both offenses was life or any other term of imprisonment not more than 99 years or less than 5 years. Tex. Pen. Code §§ 12.32(a), 22.021(e). In closing argument, the State suggested that appellant’s case was neither a minimum case nor a maximum case; rather, the State recommended punishment of “something right in the middle, 30 years, 40 years at a minimum.” Appellant’s counsel asked for a five-year sentence. The jury assessed punishment at forty years’ confinement. Although appellant argues this is per se egregious harm, he cites no authority for this proposition, and there is authority to the contrary. See Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.—San Antonio 2000, pet. ref’d) (op. on remand) (reasoning that appellant did not suffer egregious harm from failure to give reasonable-doubt instruction because sentence imposed was within range of punishment). The State did not mention the last four items (10 – 13) in its closing argument, and a forty-year sentence is well within the range of punishment. Although appellant contested his guilt at trial, the record shows ample evidence of appellant’s guilt and little doubt of appellant’s connection with the last four items. On appeal, appellant asserts that because there was evidence suggesting C.R.’s uncle also had abused her, there is a possibility that some, if not all, of the extraneous misconduct was committed by the uncle. Appellant also emphasizes the testimony of C.R.’s mother that P.K. said C.R. was lying when she accused appellant of the sexual assault and that C.R. previously had stated the uncle, not appellant, abused her. The evidence regarding these assertions is weak. C.R.’s mother merely testified that P.K. said, “[C.R.], you’re lying. You told mama that [the uncle] did it, not [appellant].” On cross-examination, C.R. also testified that her uncle “did some bad things to [her].” However, C.R. did not testify further in this regard. Despite her testimony concerning P.K.’s statement about the uncle, C.R.’s mother testified that her children (C.R. and P.K.) had never exhibited any behavior that might make her suspicious of any problem with appellant or anybody else. The uncle could have touched C.R. in an inappropriate place. C.R. could have accused the uncle of doing so, and P.K. could have made the statement to which her mother testified. All of this could be true, and that would not be inconsistent with appellant being guilty of the charged offenses based on the strong evidence adduced by the State, including multiple adult witnesses testifying that appellant himself stated he had sexual intercourse with C.R. Furthermore, appellant points to no evidence indicating that the uncle abused P.K. Appellant has not set forth authority, evidence, or reasoning suggesting that, if the trial court had given a reasonable-doubt instruction, the jury likely would have imposed a lighter sentence. Because Almanza requires a showing of actual, not theoretical, harm, we conclude that the record does not show egregious harm. See Huizar, 29 S.W.3d at 251; Gholson v. State, 5 S.W.3d 266, 271 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Therefore, we overrule appellant’s first issue. B. Did the trial court err in failing to include a limiting instruction in the jury charge during the guilt-innocence phase of trial? In his third issue, appellant contends the trial court erred in failing to charge the jury during the guilt-innocence phase that it could only consider evidence of other crimes, wrongs, or acts committed by appellant for their bearing on appellant’s state of mind and the previous and subsequent relationship between appellant and C.R. Though on appeal appellant identifies thirteen acts he contends the trial court erroneously admitted as extraneous offenses at the guilt-innocence phase of trial, at the time this evidence was introduced, appellant neither objected to its admission nor requested a limiting instruction. Therefore, the evidence was admitted, not for the limited purpose stated by appellant above, but for all purposes. The party opposing the admission of evidence bears the burden of requesting a limiting instruction at the first opportunity to do so. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). If a party does not request a limiting instruction at that time, and if the evidence is admitted without a limiting instruction, then the evidence becomes part of the general evidence and may be used for all purposes. Id. Appellant did not request a limiting instruction at the first opportunity, and thus the jury was free to consider the evidence for all purposes at the time it was admitted. Therefore, a limiting instruction in the jury charge was not within the applicable law of the case. See id. “Allowing the jury to consider evidence for all purposes and then telling them to consider that same evidence for a limited purpose only is asking a jury to do the impossible.” Id. at 894. Jury instructions, if requested, should be given when the evidence is admitted and then again in the final jury charge. Huizar, 12 S.W.3d at 482–83. Because appellant failed to request a limiting instruction when he first had the opportunity to do so and thus evidence of the extraneous acts was admitted for all purposes, a limiting instruction in the charge was not warranted. See Hammock, 46 S.W.3d at 895. Accordingly, we overrule appellant’s third issue. C. Did appellant’s trial counsel render ineffective assistance? In his second, fourth, fifth, sixth, seventh, and eighth issues, appellant contends he was denied his sixth amendment right to effective assistance of counsel. Specifically, appellant contends his trial counsel was ineffective because he failed to object to the introduction of extraneous offenses at both the guilt-innocence and punishment phases of trial and failed to request appropriate jury instructions with regard to those extraneous acts. Appellant further complains of his counsel’s failure to object to the prosecutor’s questioning of certain witnesses. Both the United States and the Texas Constitutions guarantee an accused the right to assistance of counsel. U. S. Const. amend. VI; Tex. Const. art. I, §10; Tex. Code Crim. Proc. art. 1.05. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To establish ineffective assistance of counsel, appellant must show: (1) that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) that there is a “reasonable probability” the result of the proceeding would have been different but for trial counsel’s unprofessional errors. Strickland, 466 U.S. at 688–94. Appellant must establish both points by a preponderance of the evidence to show ineffective assistance of counsel. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing appellant’s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence that shows why trial counsel did what he did. See id. The record in this case contains no evidence of the reasoning or strategy underlying appellant’s trial counsel’s actions. From this record, one could assume there were legitimate and professionally sound reasons for trial counsel’s conduct or one could speculate that there were not. As an appellate court, we cannot engage in speculation. See id. Because appellant has failed to demonstrate in the record that his trial counsel was ineffective under the first prong of the Strickland test, we overrule appellant’s second, fourth, fifth, sixth, seventh, and eighth issues. D. Was the evidence legally and factually sufficient to support the convictions? In his last four issues, appellant contends the evidence is legally and factually insufficient to support his convictions. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). A person commits aggravated sexual assault of a child if the person intentionally or knowingly (i) causes the penetration of the anus or female sexual organ of a child by any means; (ii) causes the penetration of the mouth of a child by the sexual organ of the actor; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (iv) causes the anus of a child to contact the anus, mouth, or sexual organ of another person, including the actor; or (v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and the child is younger than fourteen years of age and not the spouse of the defendant. Tex. Pen. Code §§ 22.021(a)(1)(B) & 22.021(a)(2)(B). C.R. testified, using anatomically correct dolls, that appellant penetrated her vagina with his penis. She further testified that appellant put his penis in her mouth and when he took it out, “something yellow” came out of his penis, went over her head, and landed on the bed. C.R. further testified that appellant kissed her on the mouth with his tongue and touched her chest with his tongue. The testimony of a victim, standing alone, even when the victim is a child, is legally sufficient to support a conviction for sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. stricken). Moreover, Janis Adetu, the outcry witness, corroborated C.R.’s testimony concerning the outcry. Adetu also testified appellant told family members, “I’m f***ing [C.R.].” Dr. Kennebeck, who examined C.R. after her outcry, found C.R.’s hymen was not intact. Review of medical records revealed that C.R.’s hymen was intact three months before the incidents involving appellant. From this evidence, a rational trier of fact could have concluded, beyond a reasonable doubt, that appellant committed the offenses charged. We overrule appellant’s ninth and eleventh issues challenging the legal sufficiency of the evidence. In his tenth and twelfth issues, appellant contends the evidence is factually insufficient to support his convictions. When evaluating a challenge to 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.” Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000). This concept embraces both “formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence.” Id. at 11. Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Appellant presented the testimony of Latonya Knight, C.R.’s mother. Knight testified that while in the emergency room with her daughters the night of the outcry, C.R. began to tell her what had happened with appellant. P.K., C.R.’s younger sister, interrupted C.R. and said C.R. was lying because C.R. previously had stated that the girls’ uncle, not appellant, had assaulted her. Knight further testified that appellant said he had sexual intercourse with C.R., but that this statement did not raise any alarm for her at all because appellant was not acting like himself when he made the statement. The jury, as the trier of fact, was the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury was free to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). It is apparent from its verdict, that the jury chose to believe the State’s witnesses. Having reviewed all of the evidence, we find it is not so weak as to render the jury’s verdict manifestly unjust, nor is it greatly outweighed by contrary evidence. Accordingly, we overrule appellant’s tenth and twelfth issues. Having overruled all of appellant’s issues, we affirm the trial court’s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed April 17, 2003. Panel consists of Justices Yates, Hudson, and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The report contained the word “f-----” just as it appears in this sentence. In this opinion, we use asterisks in reference to this vulgar slang term that means to have sexual intercourse with another. The actual reporter’s record contains the complete word. [2] Compare Brown v. State, 45 S.W.3d 228, 231–32 (Tex. App.—Fort Worth 2001, pet. ref’d) (finding that appellant was not egregiously harmed by the trial court’s failure to give a reasonable doubt instruction because there was little doubt of appellant’s connection with most extraneous offenses and the jury gave appellant probation for one offense and assessed punishment at the low end for his other offense), Gholson v. State, 5 S.W.3d 266, 271 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (reasoning that appellant did not show egregious harm because the jury had a proper instruction on reasonable doubt regarding unadjudicated acts at the guilt stage and the punishment charge was given to the jury on the same day as the guilt charge, the State proved the extraneous offenses with uncontroverted evidence, appellant did not contend on appeal that if a proper instruction had been given, the evidence was insufficient to prove beyond a reasonable doubt he committed the extraneous offense, nor did appellant submit evidence that, if he had requested the reasonable doubt instruction, the jury would have disregarded the extraneous offense evidence), and Fails v. State, 999 S.W.2d 144, 148 (Tex. App.—Dallas 1999, pet. ref’d) (finding appellant was not egregiously harmed because, although he denied hitting the victim, he admitted to pleading guilty to the probated extraneous offense), with Ellison v. State, — S.W.3d —, 2003 WL 45332, at *2–*3 (Tex. App.—Texarkana, Jan. 8, 2003, no pet. h.) (holding that appellant was egregiously harmed because his sentence could have been substantially affected by evidence that he committed hate crimes).