Willie Alvin Griffin Sr. v. State

Affirmed and Memorandum Opinion filed November 15, 2008 Affirmed and Memorandum Opinion filed November 15, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-01120-CR NO. 14-06-01121-CR ____________ WILLIE ALVIN GRIFFIN, SR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 400th Judicial District Fort Bend County, Texas Trial Court Cause Nos. 40,154A & 40,151A M E M O R A N D U M   O P I N I O N A jury found appellant, Willie Alvin Griffin, Sr., guilty of sexual assault of a child and aggravated sexual assault of a child. See Tex. Penal Code Ann. '' 22.011, 22.021 (Vernon 2003). The jury assessed punishment at fifty years= confinement in the Texas Department of Criminal Justice, Institutional Division for the sexual assault of a child conviction and confinement for life in the Texas Department of Criminal Justice, Institutional Division for the aggravated sexual assault of a child conviction. The trial court ordered the sentences to run consecutively. In three issues, appellant argues (1) the evidence is insufficient to sustain the aggravated sexual assault conviction, (2) appellant=s due process rights under the Fourteenth Amendment were violated because appellant had to disprove the aggravating factor in the sexual assault statute, and (3) the prosecutor made improper arguments during voir dire, improperly cross-examined appellant, and was improperly allowed to read the jury charge. We affirm. Factual and Procedural Background K.B. was born on November 14, 1986, and grew up in Needville, Texas. In 1999, K.B.=s mother began dating appellant. According to K.B., appellant sexually assaulted her on several occasions. K.B. testified the first inappropriate contact appellant had with her occurred while she was home alone with appellant. K.B. testified she was walking in the hallway when appellant grabbed her and began rubbing her breasts with his hands. K.B. testified she pulled away from him and ran next door to her aunt=s house. K.B. did not tell anyone what happened because she was scared. K.B. testified the first sexual contact occurred when her mother accused her of having sex. According to K.B., her mother accused her of having sex and told her to go to her bedroom, take off her pants, and lie on the bed so she could Acheck@ her. K.B. testified she did what her mother asked, and appellant came in the room and had sexual intercourse with her. K.B. testified appellant stuck his private area into hers and it hurt her. K.B. testified after appellant left the room she stayed in her bed and cried. According to K.B., she did not tell anyone what had happened because she was embarrassed and scared. K.B. testified this first incident occurred during the summer after her seventh grade year. The next incident occurred when K.B.=s mother called her into her room and instructed her to put on a nightgown. K.B. testified after she put on the nightgown, appellant came into the room and started having sexual intercourse with her. K.B. testified appellant kissed her lips and her breasts while he was having sex with her. K.B. testified she did not try to do or say anything because she was too scared. According to K.B., this incident occurred Aa couple of weeks@ after the first incident. K.B., however, also testified she did not remember how old she was when these two incidents occurred. K.B. testified she thought it happened the summer of her seventh grade year, but it could have occurred after she started the eighth grade. On cross-examination, however, K.B. testified the Asecond time@ occurred when she was in the eighth grade. K.B. testified about a third incident that occurred while she was sleeping. According to K.B., she was sleeping on her stomach, and appellant came into her room and got on top of her. K.B. testified she woke up with appellant lying on top of her. Appellant then proceeded to have sexual intercourse with K.B. K.B. testified she did not tell anyone what appellant had done because she was afraid she would be separated from her brothers. K.B. also testified at some point her mother told her if she made noises while appellant was having sex with her, it would make it easier for him. After K.B.=s ninth grade year, she went to live with her track coaches, Glenda and Joe Payton. Shortly after K.B. moved in with the Paytons, K.B.=s mother and appellant moved to West Columbia. According to K.B., when she would visit her mother in West Columbia, appellant would have sex with her. K.B. testified her mother threatened that if K.B. quit visiting, she would have to leave the Paytons and move to West Columbia. The first person K.B. told was her best friend Jarvis Garrett; however, K.B. made Garrett promise not to tell anyone else because she was embarrassed and scared. K.B. testified she told Garrett about the abuse either the summer of her seventh grade year or the beginning of her eighth grade year. Two or three years later, she told Glenda about the abuse. K.B. also gave Glenda a letter she had previously written that talked about the abuse she had suffered. After telling Glenda, K.B. called her aunt and her cousin and told them about the abuse as well. Glenda, Joe, and K.B.=s aunt took K.B. to the police station. Glenda testified her and her husband coached K.B.=s track team, and they let K.B. move in with them after her ninth grade year. According to Glenda, when they first met K.B. she was very shy and did not talk much. Glenda testified K.B. appeared unhappy and uncomfortable around men. Glenda testified after K.B. would win a race, she would run under the bleachers and cry. Appellant testified he had a good relationship with K.B. and denied all the allegations. After a jury trial, the jury found appellant guilty of sexual assault of a child and aggravated sexual assault of a child. The jury assessed punishment at fifty years= confinement in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine for the sexual assault of a child conviction and confinement for life in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine for the aggravated sexual assault of a child conviction. The trial court ordered the sentences to run consecutively. This appeal followed. Discussion A. Is the Evidence Legally Sufficient to Sustain Appellant=s Conviction for Aggravated Sexual Assault of a Child? In his first issue, appellant argues the evidence is legally insufficient to sustain his aggravated sexual assault conviction.[1] More specifically, appellant argues the State failed to prove K.B. was under the age of fourteen when appellant assaulted her.[2] 1. Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). 2. Analysis To establish the offense of aggravated sexual assault of a child, the State must prove appellant intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means . . . and . . . the victim was younger than fourteen years of age. See Tex. Penal Code Ann. ' 22.021(a)(1)(B)(i), 22.021(a)(2)(B). The jury charge read as follows: [I]f you find and believe from the evidence beyond a reasonable doubt, that the defendant, WILLIE ALVIN GRIFFIN, SR., on or about the 15th day of October, 2000 in the County of Fort Bend and State of Texas, did intentionally and knowingly cause the sexual organ of the Defendant to contact or penetrate the female sexual organ of [K.B.], a child younger than 14 years of age, who was not the spouse of the Defendant, you will find the defendant guilty of the offense of Aggravated Sexual Assault of a Child as charged in the indictment. The charge also instructed the jury the State was not required to prove the exact date alleged in the indictment. It explained that the Aon or about the 15th day of October, 2000" language meant any day prior to the date of the filing of the indictment and within the Statute of Limitations. This instruction was in accordance with well-settled law from the Texas Court of Criminal Appeals. See Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997). K.B. testified she was born on November 14, 1986, and turned fourteen on November 14, 2000. The State introduced a chart into evidence that laid out K.B.=s age at the start of each school year and her age at the end of each school year starting in the seventh grade. According to the chart, in August 1999, which was the start of K.B.=s seventh grade year, she was twelve years old and by the end of the school year, K.B. was thirteen years old. In August 2000, which was the start of K.B.=s eighth grade year, K.B. was thirteen years old and by the end of the school year, K.B. was fourteen years old. During trial, K.B. testified the Afirst incident@ happened during the summer after her seventh grade year and before her eighth grade year. While K.B. did not specify exactly what she meant by the Afirst incident,@ it appears she is talking about the time her mother accused her of having sex and wanted to Acheck@ her out. K.B. then testified about the time when her mother gave her a nightgown and instructed her to put it on. After K.B. put the nightgown on, appellant came into the bedroom and had sexual intercourse with her. When the prosecutor asked K.B. how long after the first incident did the nightgown incident occur, K.B. testified Aa couple of weeks.@ Additionally, K.B. testified she told Garrett about the abuse either the summer after her seventh grade year or the beginning of her eighth grade year. According to the chart, K.B. was thirteen years old during the summer after her seventh grade year and the beginning of her eighth grade year. K.B. also testified at one point she did not remember how old she was the first time appellant abused her. K.B. testified AI think it was still in my summer of my seventh grade year,@ but she also stated it could have been after she already started eighth grade. On cross-examination, K.B. testified she was in the eighth grade the time her mother gave her the nightgown and appellant had sex with her. Also, a letter K.B. wrote explaining the abuse she had suffered was admitted into evidence. In the letter, K.B. stated A[i]t started my eight grade year when my mother let the [unthinkable] happen.@ The jury is the exclusive judge of the facts proved and the weight of the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The fact a witness makes contradictory or inconsistent statements does not destroy her testimony as a matter of law. McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App. 1971) (evidence legally sufficient to support aggravated assault conviction based on prosecuting witness=s testimony even though her testimony was inconsistent); Reed v. State, 991 S.W.2d 354, 360 (Tex. App.CCorpus Christi 1999, pet. ref=d) (evidence legally and factually sufficient to support aggravated sexual assault of a child conviction based on victim=s testimony even though his testimony was contradictory). The weight to be given contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. See Muniz, 851 S.W.2d at 246; Reed, 991 S.W.2d at 360. As fact finder, the jury is entitled to judge not only the credibility of each witness, but to accept some portions of a witness' testimony and reject other portions. See Moreno, 755 S.W.2d at 867. Therefore, the jury was entitled to believe K.B.=s testimony that the abuse occurred during the summer after her seventh grade year, which was when K.B. was thirteen years old. Viewing all the evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found beyond a reasonable doubt appellant was under the age of fourteen when appellant assaulted her. See Salinas, 163 S.W.3d at 737. Accordingly, the evidence is legally sufficient to sustain appellant=s conviction for aggravated sexual assault of a child. Appellant=s first issue is overruled. B. Were Appellant=s Due Process Rights Under the Fourteenth Amendment Violated? In his second issue, appellant argues the burden was shifted requiring him to disprove the allegation that the child was under the age of fourteen, which was a violation of the due process clause of the Fourteenth Amendment. Appellant essentially argues it was presumed the child was under the age of fourteen, and he was forced to disprove this presumption. 1. Analysis To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain an adverse ruling on the objection. Tex. R. App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). To complain on appeal about lack of due process or due course of law, an appellant must lodge a proper and timely objection at trial on these grounds. Clarke v. State, 233 S.W.3d 574, 578 (Tex. App.CHouston [14th Dist.] 2007, pet. filed) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)). Appellant failed to object during trial that his due process rights were being violated; therefore, he has failed to preserve this error for appellate review. See Clarke, 233 S.W.3d at 578. Appellant=s second issue is overruled. C. Was Appellant Harmed by Allegedly Improper Actions by the Prosecutor? In his third issue, appellant raises three different arguments.[3] First, appellant argues comments made by the prosecutor during voir dire shifted the burden of proof, constituted comments on the weight of the evidence, and destroyed the presumption of innocence. Second, appellant argues the prosecutor improperly crossed-examined appellant. Third, appellant argues the trial court erred in allowing the prosecutor to read one of the jury charges during the punishment phase. We will address each argument separately. 1. Prosecutor=s Comments During Voir Dire Appellant complains about the following three comments made by the prosecutor during voir dire: (1) the defense has absolute subpoena power like the State; (2) the defense is not required to disclose certain evidence to the State; and (3) during the guilt/innocence phase of the trial, the jury will not be able to hear if there are other victims or whether the defendant has committed other offenses. Appellant admits he did not object to any of the comments, but he argues the comments constituted fundamental error. Absent an objection, a defendant waives error unless the error is fundamentalBthat is, the error creates egregious harm. Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d); see Beltran v. State, 99 S.W.3d 807, 811B12 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Egregious harm is such harm that a defendant has not had a fair and impartial trial. Ganther, 187 S.W.3d at 650. Appellant cites no cases in which similar voir dire statements were held to be fundamental error, and we are unable to find any similar cases from our own research. See Beltran, 99 S.W.3d at 812. Furthermore, the prosecutor=s comments were not so harmful that appellant did not receive a fair and impartial trial. See id. at 811B12 (holding a prosecutor=s statement regarding his personal opinion that the defendant was guilty was not fundamental error). Because the comments were not fundamental error and no objections were made, appellant has waived this issue. See id. at 812. 2. Prosecutor=s Cross-Examination Appellant next complains about certain questions asked on cross-examination by the prosecutor. The following exchange is the portion appellant complains about: Q: Let=s talk first about your disappearance from the West Columbia area. You=re claiming that you went to Houston? A: Yes. Q: And what was the purpose of you going to Houston? A: To live with friends. Q: And what friends were those? A: Lynn King. Q: Excuse me? A: Lynn King. Q: Lynn King? A: Yeah. Q: Who else? A: That was it. Q: Is Lynn King going to come in here and tell us that you were living with her all that time? A: Probably, yes. . . . . Q: So, you had contact with a lot of people when you were living in Houston between June of 2004 and November of 2005, is that correct? A: Yes. Q: Well, are any of them going to come in and verify that you were living in Houston? MR. RACER: Objection, Your Honor, trying to change the burden of proof in the case. MS. MORTON: I=m not the one that said B THE COURT: That objection will be overruled. Q: (By Ms. Morton) Is there anyone else that come (sic) can come in here and support that you were living in Houston for, what, a year and a half? Appellant argues this line of questioning along with the prosecutor=s comments in voir dire regarding the defense=s power to subpoena suggested the defense had the burden of bringing forth evidence to exonerate appellant. On direct examination, appellant testified he moved from West Columbia to Houston. On cross-examination, the prosecutor questioned appellant about whether there was any person who could verify appellant was living in Houston from June 2004 until November 2005. Appellant=s assertion that the State attempted to shift the burden of proof is unfounded. Texas Rule of Evidence 611(b) provides A[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.@ Tex. R. Evid. 611(b). The extent of cross-examination for a showing of bias or credibility is within the trial court's discretion, and its decision is not subject to reversal on appeal absent a clear abuse of discretion. Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993); Caron v. State, 162 S.W.3d 614, 617 (Tex. App.CHouston [14th Dist.] 2005, no pet.). A defendant who exercises his right to testify is subject to the same rules governing examination and cross-examination as any other witness, whether he testifies at the guilt-innocence stage or at the punishment stage of the trial. Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992); Caron, 162 S.W.3d at 617. In Texas, the scope of cross-examination is wide open, and once the defendant testifies at trial, he opens himself up to questioning by the prosecutor on any subject matter that is relevant. Felder, 848 S.W.2d at 99; Caron, 162 S.W.3d at 617. In the instant case, the State's questions on cross-examination were relevant to appellant's credibility, specifically, his testimony that he moved from West Columbia to Houston. This line of questioning was not an attempt to shift the burden of proof, but instead, tested appellant's credibility in an attempt to discover the truth. See Caron, 162 S.W.3d at 617. 3. Prosecutor Reading the Jury Charge Appellant also argues it was error for the trial court to allow the prosecutor to read one of the jury charges during the sentencing phase of the trial. Appellant argues by allowing the prosecutor to read the law, the jury was left with the impression the court was favorable to the State and that defense counsel could not be trusted. The record reflects at the punishment hearing the trial judge read the jury charge for cause number 40,151A. The judge began to lose his voice, so he asked the prosecutor to read the jury charge for cause number 40,154A. Appellant did not object at trial to the prosecutor reading the charge. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain an adverse ruling on the objection. Tex. R. App. P. 33.1(a); Broxton, 909 S.W.2d at 918. Accordingly, appellant failed to preserve this error for review. Appellant=s third issue is overruled. Conclusion Having overruled appellant=s three issues, we affirm the judgments of the trial court in cause numbers 40,151A and 40,154A. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed January 15, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant argues the evidence is insufficient to sustain his conviction but does not specifically state whether he is challenging the factual or legal sufficiency of the evidence; however, appellant only states the standard of review for a legal sufficiency challenge. Therefore, we hold appellant has only challenged the legal sufficiency of the evidence and has waived a factual sufficiency review. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (holding a factual sufficiency claim that merely includes a general discussion of the evidence but fails to include any argument as to how or why the evidence is insufficient under a factual sufficiency standard is inadequately briefed). [2] Within this issue, appellant also attempts to argue the State failed to inform appellant of the specific offense for which it intended to prosecute. Generally, when the evidence shows two or more acts of sexual assault, each of which is an offense for which the defendant may be convicted, and the indictment charges only one offense, the State is required to elect which act it will rely upon to secure a conviction if the accused makes a motion for election. Hendrix v. State, 150 S.W.3d 839, 852 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (citing Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985)). The record reflects no request by appellant in the trial court that the State elect the separate acts upon which it was relying for a conviction. The absence of a request for election by appellant waives this issue on appeal. Tex. R. App. P. 33.1; Hendrix, 150 S.W.3d at 852. [3] The State argues by combining more than one alleged error in a single ground, appellant has presented a point of error that is multifarious and, therefore, should be denied on that ground alone. See Brooks v. State, 642 S.W.2d 791, 793 (Tex. Crim. App. 1982). While it is true appellant=s third issue is multifarious, we will address each alleged error in the interest of justice.