Helton, Richard Lee v. State

Affirmed and Opinion filed April 15, 2004 Affirmed and Opinion filed April 15, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00078-CR ____________ RICHARD LEE HELTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 01CR2159 O P I N I O N Appellant, Richard Lee Helton, appeals his conviction for aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2004). After pleading not guilty, he was found guilty and sentenced by a jury to thirty five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant asserts four points of error on appeal: (1) the trial court erred in refusing appellant access to the State=s records tracking venire members past criminal jury service; (2) the evidence was factually insufficient; (3) the trial court erred by limiting appellant=s cross examination of the complainant=s mother; and (4) the trial court erred by admitting the complainant=s outcry statement. We affirm. The assault occurred on November 9, 2001. The complainant was four years old at the time of the assault. The complainant=s mother, Margaret Herrmann (AHerrmann@), had to work a night shift at a local Waffle House and asked appellant to babysit her three children. Appellant arrived at Herrmann=s trailer house at 8:30 p.m. with his own six-year-old daughter from a prior relationship. Herrmann put the complainant to bed before she left for work. She returned early the next morning. The following day, appellant and the children awoke before Herrmann. After fixing the children breakfast, appellant took them to a local park. Herrmann later joined appellant and the children at the park. When she arrived at the park, she noticed the complainant lying down. Appellant told Herrmann that the complainant was not feeling well. Herrmann loaded all of the children into her car and returned to the trailer house. The complainant was placed in a car seat. Upon returning to the trailer house, Herrmann unbuckled the complainant=s car seat and instructed him to get out. He hesitated. When asked what was wrong, the complainant said that appellant had hurt him. Herrmann took the complainant to her room and removed his pants and underwear. She found a mixture of blood and mucous in his underwear. After closer inspection, Herrmann noticed the complainant=s anus was bruised. The complainant then told her that appellant had poked him with her Atoy,@ which she learned from further questioning was her dildo. Appellant initially denied having done anything to the complainant. However, after being told by Herrmann that she would not call the police, appellant admitted to her that he had inserted the tip of the dildo into the complainant=s anus. Appellant began by explaining that he found the dildo while looking for cigarettes. At some point in the evening, the complainant came into the bedroom and saw appellant with the dildo. Appellant alleged that the complainant asked appellant what the object was and what it felt like when used. It was at this point that appellant said that he stuck the tip in the complainant=s anus. The complainant=s eight-year-old sister testified at trial that she heard her brother scream out during the night. In response to Herrmann=s call, La Marque police officers were dispatched to the trailer house. The officers arrived at the trailer to find Herrmann arguing with appellant. The officers began an investigation. The complainant told an officer that appellant had put the dildo in his anus. Appellant was then placed in custody. The officers collected the evidence, which included Herrmann=s dildo and the complainant=s underwear. The complainant was taken to the UTMB emergency room in Galveston for examination. The examining physician used a rape kit to collect evidence. The complainant told the physician that appellant had stuck the dildo in his anus. The physician concluded that the complainant had suffered a severe rectal assault. The complainant was then referred to the ABC Clinic where he underwent more tests for sexual abuse. A colposcopy exam was performed on November 12, 2001, which revealed that the complainant had suffered a trauma to the anus. The doctor supervising the tests at the clinic opined that the complainant had suffered a deep penetrating injury to his anus. In his first point of error, appellant asserts that the court erred in denying his oral motion for access to the State=s list of venire members. In particular, this list tracked prior jury service and voting records. At trial, appellant=s counsel stated, I would like to make a motion. Defendant would like access to the records that the criminal district attorney has in the background records, in checking on the backgrounds of the various jurors that are here today. The State responded by asserting that the records were a privileged work product of the district attorney=s office. Moreover, the State=s attorney added that appellant=s counsel could obtain the same information from the district clerk=s office. Appellant contends that defense counsel is traditionally barred from questioning venire members about prior criminal jury experienceCspecifically their verdict and/or punishment assessed. Thus, appellant asserts the prosecution had an unfair advantage through its possession of a list containing such information. However, a review of the case law does not suggest that it is improper to ask jurors about their previous verdicts, but, rather, that the trial court does not abuse its discretion if it bars such questions. The rationale expressed in such opinions is that the trial court has some discretion to regulate the duration and scope of voir dire. See Bolden v. State, 634 S.W.2d 710, 712 (Tex. Crim. App. 1982) (finding no abuse of discretion where trial court did not permit appellant=s counsel to question venire about their previous verdicts even though same information was allegedly possessed by the prosecutor); Redd v. State, 578 S.W.2d 129, 130-31 (Tex. Crim. App. 1979) (where prosecutor had records of prior jury service and verdicts rendered, trial court did not abuse its discretion in denying defense counsel from asking potential jurors about their previous verdicts because some Alimitation on voir dire is necessary or many trials would never end@); Oliver v. State, 739 S.W.2d 656, 657 (Tex. App.CDallas 1987, pet. ref=d) (holding trial court has the right to confine examination of venire within reasonable limits, and, thus, trial court did not err in prohibiting questions regarding previous verdicts). Here, the record suggests the information possessed by the prosecutor was obtained from the district clerk=s office. The prosecution bears no burden to furnish the defense with information on prospective jurors that can be obtained by questioning the venire members. Armstrong v. State, 897 S.W.2d 361, 365 (Tex. Crim. App. 1995) (per curiam). Similarly, we find the prosecution bears no burden to furnish the defense with information on prospective jurors that can be obtained from public sources. See Oliver, 739 S.W.2d at 659 (explaining no abuse of discretion would occur if trial court declined to extend voir dire for past jury service questions where same information was available to the defense before trial). Accordingly, we find the information possessed by the district attorney=s office was a protected work product. The work product doctrine prevents discovery of materials created by attorneys and their agents in preparation for trial. Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993). Further, we hold the trial court did not abuse its discretion in denying appellant=s request to examine the records possessed by the State=s attorney. Appellant=s first point of error is overruled. Appellant attacks the factually sufficiency of the evidence in his second point of error. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A person commits aggravated sexual assault by intentionally or knowingly causing Athe penetration of the anus or sexual organ of a child by any means.@ Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(I) (Vernon Supp. 2004). In building his insufficiency argument, appellant attempts to cast doubt on complainant=s testimony, complainant=s sister=s testimony, the police investigation, and the medical investigation. The jury, however, is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). We do not find the proof of guilt is so obviously weak as to undermine our confidence in the jury=s verdict or that the proof of guilt is greatly outweighed by contrary proof. Apparently, the jury believed the testimony that appellant penetrated complainant=s anus with a dildo. Accordingly, the second point of error is overruled. In his third point of error, appellant contends the trial court erred by not allowing appellant to question Herrmann about visits to her home by a man known as Robert Shumak. Appellant alleges that Shumak could have had access to the child immediately prior to the incident. We review the trial court=s ruling on the admission of evidence under an abuse of discretion standard. Richards v. State, 932 S.W.2d 213, 215 (Tex. App.CEl Paso 1996, pet. ref=d); see also Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). The trial court allowed voir dire examination of Herrmann with respect to her relationship with Shumak and the frequency of his visits to her trailer house. Herrmann testified that Shumak may have come by during the week before November 9, 2001. The State argued that this testimony was irrelevant because it was not evidence that Shumak was present to commit the crime that occurred on November 9th. The trial court agreed. We find no abuse of discretion as any testimony related to Shumak would be irrelevant to discovering what occurred at the trailer house on the November 9, 2001. Relevant evidence has the Atendency to make the existence of any fact that is of consequence . . . more probable or less probable.@ Tex. R. Evid. 401. Herrmann=s statements during the voir dire examination establish that Shumak was not present at the trailer house on November 9th. The fact that Shumak may have been at Herrmann=s trailer house during the week before the assault adds nothing to the determination of the issues in this case. Appellant=s third point of error is overruled. In his fourth point of error, appellant complains the trial court erred in admitting the complainant=s outcry statement in light of the totality of the circumstances, which rendered it suspect. However, at trial, appellant=s counsel made the following conditional approval/objection: Aif the court limits it to the fact that an outcry was made and that this in no way establishes guilt or anything of that nature at this time.@ The State asserts appellant has waived any error on appeal as the argument on appeal is not the same as that made at trial. Tex. R. App. P. 33.1; Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986); Gilbert v. State, 840 S.W.2d 138, 144 (Tex. App.CHouston [1st Dist.] 1992, no pet.). However, we find appellant has waived the point of error because of inadequate briefing as appellant conducts no analysis of the issue, but only provides us with a list of factors for evaluating outcry statements. See Tex. R. App. P. 38.1(h). Even if we were to assess the worth of appellant=s contention, it would be without merit. The essence of appellant=s objection at trial was that the jury should not be permitted to consider the outcry statement as probative evidence. The court was correct in overruling this objection. Outcry statements are reliable evidence of guilt. See Ex parte Tuley, 109 S.W.3d 388, 400-01 (Tex. Crim. App. 2002); see also Tex. Code Crim. Proc. Ann. Art. 38.072 (Vernon Supp. 2004) (excepting such outcry statements from the hearsay rule). Accordingly, appellant=s fourth point of error is overruled. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed April 15, 2004. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b).