Redd, Eloy v. State

Affirmed and Memorandum Opinion filed November 3, 2005 Affirmed and Memorandum Opinion filed November 3, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00339-CR NO. 14-04-00340-CR NO. 14-04-00341-CR ____________ ELOY REDD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 36,031B, 38,696 & 38,697 M E M O R A N D U M   O P I N I O N The State charged appellant, in three separate indictments, with aggravated sexual assault of a child. Appellant was sentenced to three forty-year terms of imprisonment, to run concurrently, in addition to a $10,000 fine for each offense. On appeal, appellant challenges the factual sufficiency of the evidence to support his conviction and the trial court=s denial of his motion for mistrial after the jury indicated, for the second time, that it had been unable to reach a decision on punishment. We affirm. Background Because we detail the evidence and procedural events extensively in our analysis, we address them only briefly here. We refer to the complainant in this case as M.R. At the time of appellant=s assaults, M.R. was in the seventh grade and living with her maternal aunt. Because she lived with her maternal aunt, M.R. frequently referred to her aunt as her mother, while referring to her biological mother as her aunt.[1] M.R.=s aunt told school authorities that M.R. lived with her mother, so that M.R. could attend school in that school district. After school, M.R. would go to her mother=s home. At the time of the assaults, appellant and M.R.=s mother were married and shared a home. The State charged appellant with causing his sexual organ to penetrate M.R.=s sexual organ, anus, and mouth. A jury convicted appellant of all three offenses. After finding appellant guilty of these offenses, the jury began its punishment deliberations. The jury twice sent the trial judge notes indicating it had not reached a consensus. Each time, the trial court denied appellant=s request for a mistrial, and instructed the jury to continue deliberating. At the conclusion of deliberations, the jury assessed punishment at forty years= confinement and a $10,000 fine for each of the three offenses. Appellant raises two issues on appeal. In the first, he challenges the factual sufficiency of the evidence to support his conviction. Specifically, appellant asserts the evidence does not support a finding that he was the person who sexually assaulted M.R. In the second, appellant contends that the trial court erred by denying his motion for a mistrial during the jury=s punishment phase deliberations. Appellant contends that the trial court abused its discretion by denying his motion for mistrial after the jury indicated, for the second time, that it was deadlocked. Analysis 1. The evidence supports a finding that appellant committed aggravated sexual assault upon M.R. A. Standard of Review Appellant challenges only the factual sufficiency of the evidence to support his conviction. Specifically, he contends the State failed to prove he was the person who sexually assaulted M.R. We employ familiar standards of review to analyze appellant=s factual sufficiency challenge: reviewing all of the evidence to determine whether the jury was Arationally justified in finding guilt beyond a reasonable doubt.@ Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We view the evidence in a neutral light, without the prism of the light most favorable to the verdict. Id. at 481. The evidence may be factually insufficient in two ways: (1) though legally sufficient, it may be too weak to support a finding of guilt beyond a reasonable doubt; and (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. As an appellate court, we defer to the jury=s role as factfinder, particularly in areas of witness credibility, demeanor, and the weight to be given conflicting testimony. Id. at 481 (ADeference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses.@). B. Evidence Supporting the Verdict Appellant first attacks the factual sufficiency of the evidence by arguing that the evidence supporting the verdict is not strong enough to prove his guilt beyond a reasonable doubt. Appellant contends the prosecution=s case was Abased almost entirely on the complainant=s testimony.@ Appellant concedes that one witness=s testimony is normally sufficient to support the verdict, but argues that, in this case, it is not sufficient because M.R.=s testimony Asuffered from serious flaws.@ According to appellant, M.R.=s testimony is flawed because she initially denied that she was assaulted by appellant, and because her testimony at trial was inconsistent with some of her previous statements during the investigation. We now examine the evidence that supports the jury=s verdict. Authorities learned of the assaults when M.R. told her teacher she could not sit down because Aher bottom hurt,@ and this was not because of a spanking. M.R. later made additional statements to school officials, including the school nurse and assistant principal. The staff at M.R.=s school, concerned about the possibility of sexual abuse, contacted their local law enforcement officials. However, because of the initial confusion surrounding where M.R. lived, and where the assaults took place, both Harris and Fort Bend counties were involved in the investigation. In the course of their investigations, both counties interviewed M.R. numerous times, two of which were videotaped. As part of the investigation, M.R. also gave a written statement and received a medical examination. Initially, M.R. was reluctant to discuss what had happened to her. For example, when the school nurse asked M.R. if someone had touched her, she responded that she could not answer because her uncle would be mad and had instructed her not to answer any questions. Although appellant was actually M.R.=s stepfather, she frequently referred to him as her uncle. Also, during her first taped interview, M.R. repeatedly stated that she could not talk about what had happened to her. She then made several statements indicating Anothing happened@ to her. At trial, M.R.=s counselor testified that, during a session, M.R. explained that she had not been forthcoming during the initial investigations because she was Afearful due to the threats [appellant] had made to her.@ M.R. testified that appellant had threatened to kill her, her grandmother, and her aunt if she revealed what he had done to her. She also testified that she did not want anyone to know what he was doing to her because Ahe threatened me and I was scared.@ A detective with experience investigating cases of sexual abuse testified that it is sometimes Avery hard for a child to disclose, especially sexual abuse.@ Despite her initial fears, M.R. eventually revealed that appellant had sexually assaulted her on numerous occasions. At school, M.R. spoke with her assistant principal. During the course of this conversation, the assistant principal gave M.R. paper to write on, and told her that, if she liked, she could shred the paper or scratch out what she wrote. M.R. drew a picture of a girl and a man in what appeared to be a sexual act. M.R. wrote her own name next to the girl, and Astranger@ next to the man. When her principal asked M.R. who the Astranger@ was, she wrote ARedd.@ She later crossed out ARedd@ and Astranger.@ During her second videotaped interview, M.R. told law enforcement officials that appellant had raped her.[2] At trial, when asked what had been going on that she had not wanted to talk about, M.R. stated that ARedd was doing something.@ And when asked who she was referring to, M.R. responded AEloy.@ She then identified appellant as Eloy Redd. In addition to identifying appellant in court, M.R. described several incidents when appellant sexually assaulted her. M.R. recounted that appellant raped her repeatedly, both anally[3] and vaginally,[4] and forced her to perform oral sex on him.[5] M.R.=s medical examination, which revealed evidence of penetration, corroborated her account. We have reviewed the entire record. Appellant correctly asserts that M.R. initially denied that any sexual assault occurred, and denied that appellant committed the sexual assaults. However, M.R. later provided an explanation to the jury for her earlier statements, which her counselor testified was common to victims of sexual assault. The medical evidence corroborated her account. The jury was free to consider the inconsistencies in M.R.=s testimony and to evaluate her credibility accordingly. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000)(en banc) (AUnless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.@). We conclude that M.R.=s testimony, coupled with the testimony from the other witnesses and the medical evidence, is factually sufficient to support appellant=s conviction. See Zuniga, 144 S.W.3d at 484. C. Evidence Contrary to the Verdict In his second attack on the factual sufficiency of the evidence, appellant argues that the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. In this challenge, appellant argues that the evidence shows he denied sexually abusing M.R., and that other family members had both histories of sexually abusive behavior and an opportunity to commit the crimes alleged. Against his counsel=s advice, appellant testified on his own behalf. While appellant conceded that he believed M.R. was sexually assaulted, he denied being the person who committed those assaults. Appellant also testified that, during the relevant time periods, he was not alone with M.R. During his testimony, appellant also raised the possibility that one of M.R.=s other relatives had committed the sexual assaults. The jury was free to accept or reject appellant=s own testimony that he did not commit the offenses against M.R. See Johnson, 23 S.W.3d at 8. In evaluating the credibility of his denial, the jury may have considered appellant=s prior convictions for felony theft and solicitation of prostitution. They also may have considered his contentionCthat he was never alone with M.R. and thus had no opportunity to commit the offensesCimplausible in light of the length of time that M.R. spent at his home. The jury also was free to reject appellant=s contention that another relative committed these offenses. We distinguish this case from Ward v. State, 48 S.W.3d 383 (Tex. App.CWaco 2001, pet ref=d), upon which appellant relies. In that case, the jury found that Ward committed a robbery. Four of Ward=s fellow employees testified that he was working on the day of the robbery. Time cards corroborated their testimony. Two of the eyewitnesses who identified Ward as the robber saw the perpetrator for only a brief period of time. The third eyewitness was under medication for a mental condition. Another eyewitness identified another man. In that case, the court found the evidence factually insufficient to support a guilty verdict. Id. at 391. Unlike Ward, M.R. knew her assailant and had ample opportunities to recognize appellant. Also, unlike Ward, in which documentary evidence and an eyewitness corroborated Ward=s alibi theory, the only contrary evidence in this case is appellant=s own testimony. As an appellate court, we cannot reverse simply because the jury rejected appellant=s alternate theory. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2003) (en banc) (ABut it is a jury, not a reviewing court, that accepts or rejects reasonably equal competing theories . . . .@). Again, we have reviewed the entire record. Based upon this record, we cannot say that the contrary evidence is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. We overrule appellant=s challenge to the factual sufficiency of the evidence to support his conviction. 2. The trial court did not abuse its discretion by denying appellant=s motions for mistrial. In his second point of error, appellant contends that the trial court erred by denying his motion for a mistrial. Although he moved for a mistrial twice, appellant complains only of the trial court=s denial of his second motion for a mistrial.[6] After finding appellant guilty of the three offenses described above, the jury began its punishment deliberations. After deliberating for almost nine hours, the jury sent a note to the trial court at 10:05 p.m. The note read: We are at the same point as we were after 2 hours. No one has changed their minds. We have tried everything to no avail. Is there anything that you can do to help us? The trial court recessed the jury until the following morning, and denied appellant=s motion for a mistrial. The following day, the jury deliberated for nearly seven more hours before sending a second note to the trial court. This note read: We are still 11 to 1. We have tried to lay out the charges. Attempted compromise and every angle 11 people can come up with. The 1 will not budge. The 1 refuses to compromise in any way. Please help us? The trial court brought the jury into the courtroom and gave them an Allen charge, instructing them that their failure to reach a decision would result in a re-trial of the case. Again, appellant moved for a mistrial, and the trial court denied his request. The jury resumed deliberating and returned a decision about three hours later. The jury assessed appellant=s punishment at a $10,000 fine and forty years= imprisonment for each offense. Article 36.31 of the Texas Code of Criminal Procedure allows a trial court to discharge a jury when Ait has been kept together for such time as to render it altogether improbable that it can agree.@ Tex. Code Crim. Proc. art. 36.31. Therefore, the length of time that a trial court may hold the jury for deliberations lies within the trial court=s discretion. Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989 en banc); Chapman v. State, 150 S.W.3d 809, 812 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (stating abuse-of-discretion standard applies to trial court=s decision to discharge the jury). AThe trial court is not bound to declare mistrial at the first sign of jury impasse.@ Howard v. State, 941 S.W.2d 102, 121 (Tex. Crim. App. 1996)(en banc). Instead, to determine whether the trial court abused its discretion, we must consider the length of the trial and the volume of evidence submitted to the jury. Jackson v. State, 17 S.W.3d 664, 676 (Tex. Crim. App. 2000) (citing Howard, 941 S.W.2d at 121); Chapman, 150 S.W.3d at 812. In this case, the jury was required to assess punishment for three different offenses. Each offense carried a punishment range that included, at most, life imprisonment and a fine of $10,000. During the punishment phase, the defense called nine of appellant=s family members and friends to testify. Each witness testified about their relationship with appellant and his reputation or character. Additionally, the defense recalled two of appellant=s sisters to testify about appellant=s mood and their ability to visit him since the jury=s guilty verdicts. Although the prosecution did not call any additional witnesses, it did re-offer all of the evidence introduced during the guilt/innocence phase of appellant=s trial. Over appellant=s objection, the trial court admitted this evidence. At the time of appellant=s second motion for mistrial, the jury had been deliberating for approximately fifteen hours. The jury foreman had sent two notes asking the trial court for help. In response, the trial court gave an Allen charge to encourage the jurors to reach an agreement on appellant=s punishment. We conclude that the trial court was within its discretion in determining that it was not improbable that the jury could reach a verdict. See Tex. Code Crim. Proc. art. 36.31. We overrule appellant=s second point of error. Conclusion The evidence was factually sufficient to support appellant=s conviction, and the trial court did not err by denying appellant=s motion for a mistrial. We affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed November 3, 2005. Panel consists of Justices Fowler, Edelman and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] To avoid confusion, we refer to M.R.=s biological mother as her mother and her biological aunt as her aunt. [2] The jury viewed this videotape, as well as another videotaped interview of M.R. [3] During her direct examination, M.R. testified that appellant came into the living room while she was watching television, held a knife to her throat, and told her to be still. Fearful, M.R. remained still while appellant removed his own clothes, and put his penis in her anus. M.R. testified that this was painful, and that she cried. On another occasion, appellant told M.R. to get into his shower. Once inside the shower, appellant forced his penis into her anus. [4] Also during her direct examination, M.R. testified that, while she was cooking eggs in the kitchen, appellant grabbed her by the wrist and dragged her to his bedroom. He then placed her on the bed and put a pillow over her face when she screamed. With the pillow over her head, M.R. felt appellant put his penis inside her vagina. Again, appellant testified that it hurt. [5] M.R. testified that appellant forced her to perform oral sex on him numerous times. [6] Specifically, appellant states: A[T]he jury had been deliberating some fifteen hours when they informed the trial judge, not for the first, but for the second time, that they were deadlocked . . . . the trial judge abused his discretion in denying Appellant=s motion for a mistrial.@ We interpret his briefing to challenge only the denial of his second motion for mistrial. Appellant also does not contend that the court=s Allen charge was coercive on its face, or that jury misconduct actually occurred. Therefore, we do not address these issues.