Mull, Hampton v. State

Affirmed and Memorandum Opinion filed February 20, 2003 Affirmed and Memorandum Opinion filed February 20, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-01-01175-CR ____________ HAMPTON MULL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 870,807 M E M O R A N D U M   O P I N I O N Appellant, Hampton Mull was convicted of sexual assault. After finding him guilty, a jury assessed punishment at seven years probation. The trial court imposed 600 hours of community service, boot camp, and $5,000 in restitution, as special conditions of the probation. In two issues, appellant contends the evidence was factually insufficient to sustain his conviction and that the trial court erred in denying his motion to sever his case from that of two co-defendants. We affirm. I. Sufficiency of the Evidence A. The Evidence In his first issue, appellant contends the evidence is factually insufficient to sustain the verdict. We begin our discussion with a summary of the events of the night in question. The complainant was a twenty-year-old student at Texas Southern University. On the night of February 27, 2001, she consumed some alcoholic beverages while at a party with friends. Later that night, she was talking with a group of people in a common area at TSU between the men’s and the women’s dormitories. According to several witnesses, she acted and spoke in a sexually provocative manner toward two men at that time, Donte Duplechain and Michael Thomas. The complainant, however, denied such conduct. Subsequently, she said that she wanted to go to her dorm room, Donte agreed to escort her there. However, he and Michael Thomas instead took her to the men’s dorm. She was led to a bedroom, and she sat down on a bed before she realized she was not in her own room. Three males, all co-defendants in the trial court, each had intercourse with complainant in succession. Michael Thomas was the first to have intercourse with complainant that night. Complainant testified that during intercourse, she told him that she “didn’t know him like this” and told him to “stop.” Michael Thomas also testified, giving the impression that the sex was consensual. The jury acquitted Michael Thomas. The second male was Vashawn Thomas. The complainant testified that she did not know Vashawn and that he did not say anything to her before getting on top of her. She said that when she said “no” and “stop,” someone in the room said, “shut her up,” and Vashawn put his hand over her mouth. She said at this point her body froze and she knew that regardless of what she said or did they were “going to do whatever.” The third male was appellant, Hampton Mull. Complainant testified that as soon as Vashawn got up, appellant got on top of her. There was no conversation between appellant and complainant before he penetrated her. She began to cry and told him to “stop” a few times. A couple of witnesses testified that after each time she said “stop,” she followed it by saying, “I’m alright.” At least one witness heard someone in the room tell the appellant, “that’s not cool.” Finally, complainant said, “stop” real loud and appellant stopped. Complainant then got off the bed, gathered her clothes, and was escorted out of the room by a male friend who had come to look for her. The friend testified that the complainant said to him, “I’m sorry” and that she did not know what had happened. Complainant went to her dorm room, called a different friend, and told him she had been raped. Later, when she went outside to meet with the friend who had escorted her from the men’s dorm, appellant confronted her and said, “Who am I? Did I do anything to you?” and asked her if she wanted him to call the police. B. Standard of Review In reviewing the factual sufficiency of the evidence, we 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, 7 (Tex. Crim. App. 2000). We consider all of the evidence in the record and not just the evidence which supports the verdict. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The court is authorized to disagree with the jury’s determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, a factual sufficiency review must be appropriately deferential to avoid substituting the appellate court’s judgment for that of the fact finder or substantially intruding upon the jury’s role as the judge of the weight and credibility of testimony. Johnson, 23 S.W.3d at 7. Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination concerning the weight given to contradictory testimony. Id. at 8. C. Analysis A person commits a sexual assault if he penetrates a female’s sexual organ by any means without consent. Tex. Pen. Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2002). The indictment charged that consent was lacking because appellant forced complainant to submit by the use of physical force or violence. Appellant’s position is that the evidence is factually insufficient both because the evidence of the use of physical force was so weak as to undermine confidence in the verdict and because the evidence of physical force was greatly outweighed by contrary evidence. See Johnson, 23 S.W.3d at 11 (explaining requirements of showing factual insufficiency). The key evidentiary points cited by appellant in support of his position are: (1) there was no evidence he applied physical force to complainant; (2) there was no evidence complainant physically resisted appellant; (3) complainant said, “I’m alright” after saying “stop”; (4) complainant was moaning during the encounter; (5) several witnesses who observed the events testified that they did not believe an assault was taking place; and (6) complainant said, “I’m sorry, I’m sorry” to her friend who came to look for her. We find appellant’s first argument, that there was no evidence of physical force, to be unsupported by the record. Complainant testified that appellant got on top of her without her permission and continued to lay on her and penetrate her after she told him to stop. This is sufficient evidence that he applied physical force to sexually assault complainant. See Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.—San Antonio 1999, no pet.) (stating that “[t]here is no requirement that a certain amount of force be used, only that it is used.”).[1] Regarding complainant’s alleged failure to physically resist appellant, there is no requirement that a rape victim physically resist her attacker in order to establish that a rape occurred. See, e.g., id. Regardless, having already been subjected to a sexual assault by at least one man, and with a crowd of men around her, complainant may have been unable to physically resist or she could reasonably have felt that such resistance would have been futile. Although there is testimony in the record supporting appellant’s third argument, that complainant said, “I’m alright” after she told appellant to “stop,” there was no evidence that she said she was alright after each time that she said “stop.” Complainant herself said that she told appellant to stop “numerous times,” finally saying it loudly, to which he responded, “Oh, so you want me to stop.” Based on this evidence, the jury could have reasonably believed that complainant told appellant to stop several times before he did finally stop. The jury could also have interpreted the “I’m alright” comment as something other than permission to continue. Indeed, the fact that she was crying during the encounter suggests that the statement, if made, was not tantamount to permission to continue. Fourth, the testimony that complainant was moaning could have been interpreted by the jury, in light of the circumstances, as produced by pain or by horror at what was happening to her. Although two witnesses described the moans as the “normal” or “regular” sounds of a woman having sex, the jury could well have discounted their testimony because they were present at the scene of the crime and failed to intervene and they were friends, or at least acquaintances, of the defendants. These factors suggest they may have had a bias favoring the defendants. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that the jury, as judge of the credibility of witnesses, was authorized to believe or disbelieve all, none, or any part of the testimony of any witness). For the same reasons, the jury could have discounted the testimony raised in appellant’s fifth contention, suggesting that observers thought nothing illegal was occurring. This testimony is further called into question by the testimony that someone said, “that’s not cool,” while appellant was having intercourse with complainant. Lastly, the evidence that appellant allegedly said, “I’m sorry” to her friend who came to look for her does not change our analysis. If she said this, she may have meant that she was sorry that the incident had occurred, or given the events of the night, she may have been incoherent by that point. In sum, we find appellant’s evidentiary arguments without merit and further find the evidence factually sufficient to sustain the conviction. Appellant’s first issue is overruled. II. The Denial of Severance In his second issue, appellant contends the trial court erred in denying his motion to sever his prosecution from that of his co-defendants. He specifically argues that his case was prejudiced by the joint trial because: (1) the evidence of physical force being used against the complainant by the co-defendants prejudiced his defense; (2) he and his co-defendants relied on inconsistent defenses necessitating severance; and (3) he was harmed by the admission of a nontestifying co-defendant’s statement. A trial court must grant a severance if a joint trial would be prejudicial to any defendant. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981). The determination of whether a joint trial would be prejudicial is within the sound discretion of the trial court. Simon v. State, 743 S.W.2d 318, 322 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d); see also Mulder v. State, 707 S.W.2d 908, 915 (Tex. Crim. App. 1986) (analyzing claim of prejudice in severance case under abuse of discretion standard). The denial of a motion to sever will constitute an abuse of discretion only when the movant satisfies the heavy burden of showing “clear prejudice.” King v. State, 17 S.W.3d 7, 16 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Louis v. State, 825 S.W.2d 752, 757 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). A. Evidence of Physical Force Appellant contends he was unfairly prejudiced because the evidence demonstrated that the other co-defendants used physical force whereas he did not. He suggests that complainant’s testimony that she tried to push Michael Thomas off, but it didn’t work, and that she was more aggressive with Vashawn Thomas, but he put his hand over her mouth, could have led the jury to hold appellant responsible for his co-defendants’ use of force. He claims that this testimony was particularly prejudicial in light of complainant’s failure, when directly asked, to describe the physical force used by appellant. We begin by noting that the premise of appellant’s argument is faulty. As discussed above under issue one, the evidence is sufficient to support the conclusion that appellant himself used physical force in assaulting complainant. Therefore, the jury did not need to rely on the physical force of the other defendants in order to find him guilty of using force. During voir dire, the judge was careful to impress upon the prospective jurors that the State had to prove the case against each defendant independently and that the jury had to make an individual determination as to guilt for each defendant. Later, immediately before reading the charge, the judge reiterated that the jury was required to make an independent verdict as to each defendant. In the absence of evidence indicating the jury failed to do so, we presume they followed the instructions of the trial court. Lusk v. State, 82 S.W.3d 57, 61 (Tex. App.—Amarillo 2002, pet. ref’d) (concerning instruction to disregard testimony); Weatherby v. State, 61 S.W.3d 733, 738 (Tex. App.—Fort Worth 2001, pet. ref’d) (concerning instruction to disregard argument). There is no indication in the record that the jury was prejudiced against appellant by the evidence admitted regarding the conduct of the co-defendants or that the jury was unable to comply with the judge’s instructions. Additionally, it is clear that the jury was capable of judging each of the defendants based on their own actions by virtue of the fact that the jury acquitted Michael Thomas despite the evidence regarding his conduct that appellant now claims was prejudicial to him. Furthermore, the evidence regarding alleged differences in the amount of force used at most illustrates the different degrees of culpability among the defendants. Proof of this nature is not sufficient to warrant separate trials. Mendoza v. State, 61 S.W.3d 498, 502 (Tex. App.—San Antonio 2001), aff’d on other grounds, 88 S.W.3d 236 (Tex. Crim. App. 2002); King, 17 S.W.3d at 17.[2] Accordingly, we find that the trial court did not err in denying the motion for severance based on the admission of the physical force evidence. B. Inconsistent Defenses Appellant additionally argues that the existence of inconsistent defenses among the co-defendants necessitated a severance. The use of conflicting or inconsistent defenses among co-defendants may warrant severance if harmful to one of the defendants. See, e.g., Silva v. State, 933 S.W.2d 715, 718–19 (Tex. App.—San Antonio 1996, no pet.). Although he does not expressly state the nature of the allegedly inconsistent defenses, appellant is apparently suggesting that the other two co-defendants were using a defense based on complainant’s consent to the sexual encounter, whereas he was using a defense based on the lack of physical force. In order to be entitled to a severance based on inconsistent defenses, the co-defendants’ respective positions must be mutually exclusive in the sense that to believe the core of one defense, the jury would have to disbelieve the core of the other. King, 17 S.W.3d at 17–18 (citing Goode v. State, 740 S.W.2d 453, 455 n.2 (Tex. Crim. App. 1987), and Silva, 933 S.W.2d at 719). The defenses of appellant and his co-defendants were not inconsistent to this degree. To believe that appellant did not use physical force against complainant, the jury would not have to disbelieve that the co-defendants’ sexual encounters were consensual.[3] Furthermore, as discussed above, the evidence regarding differences in force at most demonstrates different degrees of culpability among the defendants. See Mendoza, 61 S.W.3d at 502; King, 17 S.W.3d at 17. Accordingly, we find that the trial court did not err in denying the motion for severance on the basis of inconsistent defenses. C. Admission of Co-defendant’s Statement 1. Issue & Legal Framework Appellant next contends that a severance should have been granted because the written statement of Vashawn Thomas was used at trial. The trial court admitted the statement with redactions. Appellant specifically complains that the obvious redactions in the document allowed the jury to speculate that appellant was present when complainant was first brought into the men’s dorm room. In the statement, Vashawn describes how he saw a group of men escort complainant through his room and into the adjoining room. He lists several individuals including “Daunte” (apparently meaning Dante Duplechain), but at least one of the names is blacked out. Appellant’s point is that the implication or suggestion that he may have been there at an early stage makes him look like a planner or instigator rather than someone who happened upon events and opportunistically, took part. In Bruton v. United States, the Supreme Court held that in a joint trial a nontestifying co-defendant’s statement is not admissible if it implicates the defendant in the charged offense. 391 U.S. 123, 135–37 (1968). The court found that the admission of such evidence would violate the defendant’s Sixth Amendment right to confrontation since the co-defendant could not be cross-examined regarding the statement. Id. at 136. In Richardson v. Marsh, the Supreme Court clarified Bruton, holding that a co-defendant’s statement may be admissible when a limiting instruction has been given and the statement has been redacted to eliminate not only the defendant’s name but any reference to his existence. 481 U.S. 200, 211 (1987). In Gray v. Maryland, the court further explained that when the redaction is accomplished by replacing a name with a blank space, a symbol, or some other obvious indication of alteration, the statement may still violate a defendant’s right of confrontation. 523 U.S. 185, 192–93 (1998); see also Wilson v. State, 948 S.W.2d 21, 29 (Tex. App.—Eastland 1997, pet. ref’d) (discussing circumstances under which courts have found redactions by replacement to be or not to be Bruton violations). 2. Waiver In the written motion for severance, appellant contended that “[i]f [appellant] and Co-Defendants are jointly tried, and if the statements of said Co-Defendants are admitted into evidence and said Co-Defendants do not testify, [appellant] will be denied rights of confrontation and cross-examination.” During the hearing on the motion for severance, appellant’s counsel barely mentions the co-defendants’ statements, suggesting only that if one of the co-defendants chose not to testify, the statements could be prejudicial. At the close of the hearing, the trial court denied the motion based, in part, on the requirement that the prosecutor redact the defendants’ names from each other’s statements. Specifically, the court denied severance based upon the “understanding that we can go over every word to make sure that any references are totally obliterated” from the sight of the jury. During trial, when the State moved to admit Vashawn’s statement into evidence, the trial court held a conference in which defense counsel were given an opportunity to review the redacted document. The trial court then asked, “Is everybody satisfied that everything is redacted?” Each of the three defense counsel, including appellant’s counsel, responded, “Yes.” The record is clear that at no point did appellant object to the introduction of the redacted statement, the method of redaction, or the lack of a specific limiting instruction. Although appellant’s motion for severance complained of Vashawn’s statement in a general way, appellant waived error by failing to object to admission of the document after redaction and, in fact, indicating that he was satisfied with the redaction. Accordingly, we find that appellant failed to preserve any of his arguments regarding Vashawn’s statement. See Tex. R. App. P. 33.1 (stating that in order to preserve a complaint for appellate review, a party must have made a timely and sufficiently specific objection, request, or motion in the trial court); Espinosa v. State, 29 S.W.3d 257, 260 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (stating that complaints on constitutional grounds must generally be preserved in the trial court). 3. Harmless Error However, even if appellant had preserved his arguments, we further find that any error committed by the trial court in regard to Vashawn’s statement was harmless. See Harrington v. California, 395 U.S. 250, 254 (1969) (finding Bruton violation to be harmless error); Chavez v. State, 6 S.W.3d 56, 62 (Tex. App.—San Antonio 1999, pet. ref’d) (same); Wilson, 948 S.W.2d at 30 (same). Because appellant’s complaint touches on the constitutionally protected right of confrontation, we must examine the potential harm under a heightened standard. See Chavez, 6 S.W.3d 62 (analyzing issue under Rule 44.2(a) of the Texas Rules of Appellate Procedure); Wilson, 948 S.W.2d at 30 (analyzing issue under former Rule 81(b)(2), the predecessor to 44.2(a)). Rule 44.2(a) states that in reviewing constitutional error for harm, the court must reverse unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or the punishment. Tex. R. App. P. 44.2(a). The question is not whether the outcome was proper or whether there was overwhelming evidence of guilt, but whether the evidence “dissipates the error’s effect upon the jury’s function in determining the facts so that it did not contribute to the verdict.” See Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). We must isolate the error and all its effects, then ask whether a rational trier of fact might have reached a different result if the error and its effects had not occurred. See id. at 588. Generally, when making this determination, we are to consider: (1) the source of the error; (2) the nature of the error; (3) whether, or to what extent, it was emphasized by the State; (4) the probable collateral implications of the error; and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. See id. at 587. Our focus must remain, not on the propriety of the outcome of the trial, but on the integrity of the process that led to the conviction. Id. First, the statement at issue in this case is not directly incriminatory of the individual whose name was redacted. At most, the statement places the unknown person at the scene of the crime at a particular time. Appellant does not deny being at the scene, nor does he deny having sexual intercourse with complainant on the night in question. His sole objection regarding the statement is that it allowed for the possibility that he might have been present when complainant was brought into the dorm room. However, the testimony of several witnesses suggested that it was Michael Thomas, not appellant, who accompanied complainant to the dorm room but was not listed in Vashawn’s statement as having done so. No fewer than five witnesses, including complainant and Michael himself, testified that Michael was with the group taking complainant to the room. Appellant points to no evidence suggesting that he was with that group. Complainant herself testified she did not see appellant at that time. Additionally, Donte Duplechain testified that at some point after complainant was already in the dorm room, he, Duplechain, went and personally told appellant that the complainant was in the room. This testimony was supported by at least one other witness who testified that Duplechain stated that he was going to go tell appellant. In sum, there is no evidence in the record supporting appellant’s contention that the statement may have led the jury to believe he was with the group that brought complainant into the dorm room. To the contrary, all the evidence points to appellant having arrived in the room at some later time. As discussed above regarding appellant’s sufficiency of the evidence claims, there was sufficient evidence to sustain appellant’s conviction absent the admission of the statement. Accordingly, we find beyond a reasonable doubt that the alleged error by the trial court did not contribute to the conviction or the punishment. See Tex. R. App. P. 44.2(a). Any error on behalf of the trial court in admitting the statement was harmless. Appellant has failed to meet his burden of showing that clear prejudice resulted from the trial court’s denial of the motion to sever. See King, 17 S.W.3d at 16; Louis, 825 S.W.2d at 757. Accordingly, we overrule appellant’s second issue. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed February 20, 2003. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b). [1] In Gonzales, the court considered evidence that the defendant lay on top of the victim as evidence of the use of physical force. 2 S.W.3d at 415. Appellant emphasizes the fact that when asked directly whether appellant used physical force, complainant stated only that, “He just stuck his penis in me. It wasn’t a polite way to do it . . . [I]t hurted . . . if that’s considered.” Complainant’s statement should be analyzed in the proper context. Reviewing the entirety of complainant’s testimony and the evidence in general, there was sufficient evidence of the use of physical force. [2] We additionally note that if appellant had been tried separately, the evidence regarding the actions of Michael and Vashawn Thomas may well have been admissible as res gestae of the offense. Cf. Rodriguez v. State, 90 S.W.3d 340, 357–58 (Tex. App.—El Paso 2001, pet. ref’d) (holding that because jury would have heard the same evidence in a separate trial, joinder could not have affected appellant’s substantial rights). See generally Mayes v. State, 816 S.W.2d 79, 86–87 (Tex. Crim. App. 1991) (discussing admissibility of contextual evidence). Without knowledge of the events and circumstances that led up to appellant’s conduct, it would be very difficult for a jury to accurately judge that conduct. See id. at 86. The conduct did not occur in isolation. As appellant’s own recounting of the evidence demonstrates, by the time he assaulted complainant she was in a resigned state having actively attempted to resist the prior men to no avail. Under that circumstance, it is not surprising that the physical force required for appellant to accomplish the rape was not as great as for the prior assaults. However, because we find that the evidence was not prejudicial to appellant, we need not fully consider the res gestae issue. See generally Medellin v. State, 960 S.W.2d 904, 908 (Tex. App.—Amarillo 1997, no pet.) (discussing two-prong test for determining admissibility of such evidence based on Mayes and its progeny). [3] Indeed, it could be said that the consent defense contains within it the lack of physical force defense. It would be inaccurate to say that a person was physically forced to perform a sex act but also consented to the act.