Nixon, Jacoy

PD-1231-15 PD-1231-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/17/2015 8:06:42 PM Accepted 9/22/2015 11:44:58 AM ABEL ACOSTA NO. _____________ PD CLERK

IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS ___________________________________________

JACOY NIXON

Petitioner,

VS.

THE STATE OF TEXAS

Respondent _________________________________________________________

Petition in Cause No. 12-05-05609-CR from the TH 9 District Court of Montgomery County, Texas and the Court of Appeals for the 14TH District of Texas _________________________________________________________

PETITION FOR DISCRETIONARY REVIEW _________________________________________________________

TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com September 22, 2015 SBOT # 24072501

ATTORNEY FOR PETITIONER

IDENTITIES OF PARTIES AND COUNSEL

PETITIONER: JACOY NIXON

PRESIDING JUDGE: HON. KELLY CASE 9th District Court Montgomery County Courthouse 207 West Phillips, Suite 306 Conroe, Texas 77301 (936) 539-7866

PROSECUTORS: MS. ROCHELLE L. GUITON MS. NANCY HEBERT Assistant District Attorney Montgomery Co. District Attorney’s Office 207 West Phillips, 2nd floor Conroe, Texas 77301 (936) 539-7800

TRIAL COUNSEL: MR. JARROD L. WALKER 300 West Davis St, Ste. 450 Conroe, Texas 77301 (936) 539-3335

APPELLATE COUNSEL: MR. TOM ABBATE 440 Louisiana, Ste 200 Houston, Texas 77002 (713)-223-0404

APPELLEE COUNSEL: MR. WILLIAM J. DELMORE III Assistant District Attorney Montgomery Co. District Attorney’s Office 207 West Phillips, 2nd floor Conroe, Texas 77301 (936) 539-7800

TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .............................................................................. 2 INDEX OF AUTHORITIES........................................................................................................... 4 STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 6 STATEMENT OF THE CASE....................................................................................................... 6 STATEMENT OF PROCEDURAL HISTORY ............................................................................. 6 QUESTIONS PRESENTED FOR REVIEW ................................................................................. 7 REASON FOR REVIEW ............................................................................................................... 7 REASON FOR REVIEW ............................................................................................................. 10 PRAYER FOR RELIEF ............................................................................................................... 16 CERTIFICATE OF SERVICE ..................................................................................................... 17 CERTIFICATE OF COMPLIANCE ............................................................................................ 17 APPENDIX ................................................................................................................................... 18

INDEX OF AUTHORITIES Cases Berotte v. State, 992 S.W.2d 13 (Tex. App.--Houston [1st Dist.] 1997) ........................................ 9 Broderick v. State, 89 S.W.3d 696 (Tex. App.—Houston [1st Dist.] 2002) ................................ 12 Castelan v. State, 54 S.W.3d 469 (Tex. App.—Corpus Christi 2001) ......................................... 12 Clark v. State, 659 S.W.2d 53 (Tex. App.--Houston [14th Dist.] 1983) .................................. 8, 10 De Los Santos v. State, 219 S.W.3d 71 (Tex. App.--San Antonio 2006) ....................................... 9 Dufrene v. State, 853 S.W.2d 86 (Tex.App. —Houston [14 Dist.] 1993) .............................. 7, 8, 9 Duran v. State, 163 S.W.3d 253 (Tex. App.—Fort Worth 2005)........................................... 13, 16 Fields v. State, 500 S.W.2d 500 (Tex. Crim. App. 1973) ............................................................... 7 Fox v. State, 175 S.W.3d 475 (Tex. App.—Texarkana 2005) ........................................................ 8 Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) ....................................................... 12, 13 Hanson v. State, 180 S.W.3d 726 (Tex. App.—Waco 2005) ....................................................... 12 Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004) ..................................................... 16 Hogan v. State, __ S.W.3d __, 2013 WL 5728159 (Tex. App.--Houston [14th Dist.] 2013) .... 7, 9 Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998) ..................................................... 13, 15 King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) ........................................................... 13, 15 Long v. State, 770 S.W.2d 27 (Tex. App.--Houston [14th Dist.] 1989) ......................................... 9 Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990)............................................................... 12 Michell v. State, 381 S.W.3d 554 (Tex. App.— Eastland 2012) .................................................. 13 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................. 8, 10 Moore v. State, 233 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2007) ...................................... 11 Nino v. State, 223 S.W.3d 749 (Tex. App.—Houston [14th Dist.] 2007) .................................... 13 Nixon v. State, 14-14-00534-CR (Tex. App.--Houston [14th Dist.] 2014) ...................... 10, 15, 16 Norris v. State, 788 S.W.2d 65 (Tex. App.—Dallas 1990) .................................................... 12, 15 Prince v. State, 192 S.W.3d 49 (Tex. App.--Houston [14th Dist.] 2006)....................................... 8 Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App. 2011) ........................................ 11, 12, 14, 15 Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) ...................................................... 13, 15 Statutes Tex. Code Crim. Proc. art. 38.072 .................................................................................... 10, 11, 13 Rules Tex. R. App. P. 33.1...................................................................................................................... 13 Tex. R. App. P. 44.2................................................................................................................ 13, 15 Tex. R. Evid. 601 ............................................................................................................................ 7 Tex. R. Evid. 802 .......................................................................................................................... 10 Tex. R. Evid. 803 .......................................................................................................................... 10

NO. _____________ PD

IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS ___________________________________________

JACOY NIXON

Petitioner,

VS.

THE STATE OF TEXAS

Respondent _________________________________________________________

Petition in Cause No. 12-05-05609-CR from the TH 9 District Court of Montgomery County, Texas and the Court of Appeals for the 14TH District of Texas __________________________________________________________

PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS

Jacoy Nixon, petitions the Court to review the judgment affirming his conviction for aggravated sexual assault of a child under six in Cause No. 12-05-05609-CR

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would assist to resolve whether the trial court abused its discretion by finding the complainant competent to testify and in admitting the outcry statement under Article 38.072 of the Texas Code of Criminal Procedure.

STATEMENT OF THE CASE

This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION BY JURY finding JACOY NIXON (hereinafter, “Appellant,”), GUILTY of the charge AGGRAVATED SEXUAL ASSAULT OF A CHILD UNDER AGE 6 and sentencing him to 41 YEARS TDCJ in Cause No. 12-05-05609-CR. (CLRK. REC. - 220). On May 22, 2012, a grand jury indicted Appellant for the felony offense of “intentionally or knowingly cause the penetration of the mouth of L.H., a child who was then and there younger than 14 years of age, by the defendant’s sexual organ.” (CLRK. REC. – 10). Appellant filed a NOTICE OF APPEAL on June 25, 2014. (CLRK. REC. – 235).

STATEMENT OF PROCEDURAL HISTORY

The court of appeals rendered its decision affirming the petitioner’s conviction on AUGUST 18, 2015. The Petitioner did not file a motion for rehearing. This petition was then filed with the clerk of the court of appeals within 30 days after the ruling.

QUESTIONS PRESENTED FOR REVIEW

Did the Trial Court abuse its discretion in finding that the complainant was competent to testify in this case?

REASON FOR REVIEW

As a general rule, a witness is presumed to be competent to testify. Tex. R. Evid. 601. A child is not competent to testify when, after an examination by the trial court, the child does not appear "to possess sufficient intellect to relate transactions with respect to which [the child is] interrogated." Tex. R. Evid. 601(a)(2); Hogan v. State, __ S.W.3d __, 2013 WL 5728159, at *1 (Tex. App.--Houston [14th Dist.] 2013, pet. filed).

When a party challenges the competency of a child witness, the trial court will consider whether the child witness possesses (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. See Hogan, __ S.W.3d at __, 2013 WL 5728159, at *1. The third element involves the ability to understand the moral responsibility to tell the truth, to understand the questions posed, and to frame intelligent answers. See Id. Although the child need not understand the "obligation of the oath," the trial court must impress the child with the duty to be truthful. See Dufrene v. State, 853 S.W.2d 86, 88 (Tex.App. —Houston [14 Dist.] 1993). There is no precise age under which a child is deemed incompetent to testify. See Fields v. State, 500 S.W.2d 500, 502-03 (Tex. Crim. App. 1973); Clark v. State, 659 S.W.2d *8 53, 55 (Tex. App.--Houston [14th Dist.] 1983, no pet.).

To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for the objection becomes apparent. Prince v. State, 192 S.W.3d 49, 58 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd). A trial court's determination of whether a child witness is competent to testify will not be disturbed on appeal absent an abuse of discretion. Dufrene, 853 S.W.2d at 88. An appellate court must review the child's responses to qualification questions as well as the child's entire testimony to determine whether the trial court's ruling on competency constituted an abuse of discretion. Fox v. State, 175 S.W.3d 475, 481 (Tex. App.—Texarkana 2005, pet. ref'd). A trial court does not abuse its discretion if its ruling was within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

Appellant preserved the issue of competency on several occasions by filing a motion in limine, obtaining a ruling thereon, objecting to L.H.’s testimony on confrontational grounds during the 601 review, and finally, reurging the objection in his motion for a directed verdict. The error was therefore properly preserved. Prince, 192 S.W.3d at 58.

The complainant’s answers and testimony in this case showed extreme conflict and confusion, and overall her testimony indicated insufficient accuracy in her recollection. See Berotte v. State, 992 S.W.2d 13, 17 (Tex. App.--Houston [1st *9 Dist.] 1997, pet. ref'd); Long v. State, 770 S.W.2d 27, 29 (Tex. App.--Houston [14th Dist.] 1989), rev'd on other grounds, 800 S.W.2d 545 (Tex. Crim. App. 1990). Appellant argues that the level of inconsistency in the complainant’s responses and testimony about the events goes to her competency as opposed to her credibility. See De Los Santos v. State, 219 S.W.3d 71, 80-81 (Tex. App.--San Antonio 2006, no pet.).

Appellant points out that L.H. had difficulty remembering him and his stepmother, Chitra Johnson. When asked about the alleged offense during the examination and her testimony, she repeatedly stated that she did not remember, and gave conflicting answers when asked about the events in question. Finally, Appellant points out that the complaining witness had difficulty describing even recent events, as she initially answered in the negative when asked if she remembered discussing the events with the judge, which had occurred twice within the previous twenty-four hour period. (RR.IV – 55-56).

In light of the complainant's answers to the qualification questions and her testimony as a whole during the proceedings, the record demonstrates that she did not possess the ability to intelligently observe the events in question at the time of the occurrence, was not capable of recollecting the events, and was not capable of narrating the events. See Hogan, __ S.W.3d at __, 2013 WL 5728159, at *1-5; Dufrene, 853 S.W.2d at 88-89; Long, 770 S.W.2d at 29; Clark, 659 S.W.2d at 54-*10 55. Finally, because the record demonstrates that the complainant did not possess the requisite capacity to be competent to testify, the trial court’s decision to admit that testimony is outside the zone of reasonable disagreement and is therefore an abuse of its discretion. See Montgomery, 810 S.W.2d at 391.

The Court of Appeals, however, held that the record as a whole reflected that the complainant knew the difference between a truth and a lie, understood questions, and responded intelligently. Nixon v. State, 14-14-00534-CR, at *6 (Tex. App.--Houston [14th Dist.] 2014). Further, the court opined that “[a]lthough some of the complainant’s responses were inconsistent, overall she responded sufficiently and was able to convey to the jury the details of what occurred.” Id. Therefore, the court held that the trial court did not abuse its discretion by finding that the complainant was competent to testify. Id.

Did the Trial Court abuse its discretion under Article 38.072 of the Texas Code of Criminal Procedure?

REASON FOR REVIEW

Hearsay statements are generally inadmissible unless permitted by statute or evidentiary rule. See Tex. R. Evid. 802, 803. Article 38.072 provides an exception to the hearsay rule by allowing evidence of an "outcry statement" by a child complainant younger than fourteen years old. See Tex. Code Crim. Proc. art. 38.072, § 2(a). When a defendant is charged with certain offenses against a child under the age of fourteen, article 38.072 allows into evidence the complainant's out-of-court *11 statement so long as that statement, is reliable, describes the alleged offense, and is offered into evidence by the first adult to whom the child made a statement about the offense. Id; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).

Article 38.072 has several requirements that must be met before an outcry witness may testify. See Tex. Crim. Proc. art. 38.072. At least fourteen days before trial, the State must notify the defendant of its intention to call an outcry witness and must provide the name of that witness. Id. The State must also provide a summary of the outcry statement that will be offered into evidence. Id. art. 38.072, § 2(b)(1)(C). The victim must either testify or be available to testify at the proceeding in court or in any other manner provided by law. Id. art. 38, 072, § 2(b)(3). And finally, outside the presence of the jury, the trial court must hold a hearing to determine whether the victim's out-of-court statement is "reliable" based on the "time, content, and circumstances of the statement." Id. art. 38.072, § 2(b)(2). The statute is mandatory, and the trial court commits error if it overrules a hearsay objection without first conducting the hearing. Moore v. State, 233 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet).

“To whom the child made a statement about the offense." Has been construed to mean that the proper outcry witness is the first adult person "to whom the child makes a statement that in some discernible manner describes the alleged offense … [T]he statement must be more than words which give a general allusion that *12 something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see Castelan v. State, 54 S.W.3d 469, 475 (Tex. App.— Corpus Christi 2001, no pet.). In other words, the proper outcry witness is the first adult, other than the accused, to whom the complainant told the "how, when, and where" of the offense. Hanson v. State, 180 S.W.3d 726, 729 (Tex. App.—Waco 2005, no pet.).

Further, the statute charges the trial court with determining the reliability based on "the time, content, and circumstances of the statement;" however, it does not charge the trial court with determining the reliability of the statement based on the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488. The phrase, "time, content, and circumstances" refers to the time the child's statement was made to the outcry witness, the content of the child's statement, and the circumstances surrounding the making of that statement. Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Although courts have enumerated factors that may assist in ascertaining the reliability of an outcry statement, the focus of the inquiry must remain upon the outcry statement, not the abuse itself. Norris v. State, 788 S.W.2d 65 (Tex. App.—Dallas 1990, pet. ref'd).

A general hearsay objection is sufficient to preserve a claim under article 38.072. See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). However, an appellant must also object on the basis of reliability to preserve a claim that the *13 statement fails that portion of the test under 38.072. See Tex. R. App. P. 33.1(a)(1); Duran v. State, 163 S.W.3d 253, 256 (Tex. App.—Fort Worth 2005, no pet.).

Once such an objection is made, a trial court's determination that an outcry statement is admissible under article 38.072 will not be overturned absent an abuse of discretion. Nino v. State, 223 S.W.3d 749, 752 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Garcia, 792 S.W.2d at 92); Michell v. State, 381 S.W.3d 554, 558 (Tex. App.— Eastland 2012, no pet.).

Finally, reversal of a conviction due to the erroneous admission of hearsay testimony must follow if it is determined that the admission affected an appellant's substantial rights. See Tex. R. App. P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A conviction should not be overturned for such error if this Court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).

As demonstrated above, the complainant in this case was not competent to testify due to her inability to intelligently observe the events in question, to recollect the events, and to narrate the events. She was therefore not available to testify. See Tex. Crim. Proc. art. 38.072, § 2(b)(3). Because the requirements of 38.072 are *14 mandatory, it was clearly an abuse of discretion for the trial court to admit the outcry statement through the testimony of the complainant’s mother. Appellant properly preserved this issue by pointing out that to the trial court that the statute required that the complainant be available to testify before the outcry statement could be admissible. (RR.III – 108).

Further, even if the complainant was competent to testify, the trial court erred in finding that the statement was reliable based on the “time, content, and circumstances.” As stated above, it is reliability of the statement itself that is in question, and not the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488. This issue was also properly preserved as defense counsel objected to the admissibility of the outcry statements during the multiple bench hearings.

In this case, the trial court heard the testimony of the outcry witness herself, as well as the complainant, outside the presence of the jury for the purposes of ruling on the admissibility thereof. However, the trial court did not examine the complainant regarding the circumstances of the outcry statement itself during either 38.072 examination before finding her credible and reliable. (RR.III – 108-109). Because the focus of the inquiry must remain upon the outcry statement, and not the abuse itself, the trial court abused its discretion by finding the statement to be reliable as it had not examined the complainant regarding the statement itself. Norris, 788 *15 S.W.2d 65. Instead, the trial court determined the reliability of the statement based on the credibility of the outcry witness. Sanchez, 354 S.W.3d at 487-488.

Finally, reversal of this conviction due to the erroneous admission of hearsay testimony must follow as it is clear that the admission affected the Appellant's substantial rights. See Tex. R. App. P. 44.2(b); Taylor, 268 S.W.3d at 592. The error in this case had a substantial and injurious effect or influence in determining the jury's verdict, due to the fact that if the outcry statement had been excluded because to the complainant was not available to testify, or because the statement itself was unreliable, the evidence in this case would have been legally insufficient to support the conviction. King, 953 S.W.2d at 271. Because a review of the record as a whole clearly demonstrates that the error did in fact heavily influence the jury, reversal should follow. Johnson, 967 S.W.2d at 417.

The Court of Appeals, however, held that the appellant had failed to object to the outcry statement’s reliability based on the circumstances, and therefore did not properly preserve the error for review. Nixon, 14-14-00534-CR, at *10. According to the court of appeals, appellant had an opportunity to request that the trial court question the complainant regarding the circumstances in which she first outcried to her mother, but instead chose to object to the hearing based on the complainant’s competency under Rule 601. Id. at 9.

Moreover, the court of appeals did not find an objection, from appellant, to *16 the reliability of the outcry statement based on the circumstances surrounding the statement, nor did it believe that the appellant’s grounds for objection were so obvious that the court would be put on notice. Id. Finally, the court of appeals noted that the trial court gave both parties an opportunity to suggest questions to determine the reliability of the outcry statement during the hearing, and that “Appellant’s only proffered questions related to the complainant’s ability to recollect, which is an element of Rule 601.” Id. (citing Duran, 163 S.W.3d at 256; Heidelberg v. State, 144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004)).

PRAYER FOR RELIEF

ACCORDINGLY, this Court should GRANT this PETITION FOR DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the question of whether the evidence against the Petitioner was legally sufficient to support his conviction.

Petitioner further prays for all relief to which he may be entitled.

Respectfully submitted,

___________________________ TOM ABBATE 440 LOUISIANA ST, STE 200 HOUSTON, TX 77002 T: 713.223.0404 F: 800.501.3088 tom@tomabbatelaw.com SBOT # 24072501

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing PETITION FOR DISCRETIONARY REVIEW was delivered to the MONTGOMERY County District Attorney’s Office by CERTIFIED MAIL on SEPTEMBER 18, 2015

___________________________ TOM ABBATE

CERTIFICATE OF COMPLIANCE

I hereby certify that there are 3,399 words contained in this document.

___________________________ TOM ABBATE

APPENDIX

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