Opinion
No. 05-10-01246-CR
Opinion Filed December 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F-0950888-S.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
A jury convicted appellant DeCarlo Gardale Armstrong of aggravated sexual assault of a child under fourteen and sentenced him to ninety-nine years' confinement. He raises four issues on appeal. He argues the trial court erred when it excluded a recent sexual assault allegation by the complainant and then failed to allow him to make a formal bill of exception in question and answer form. He further alleges the trial court erred by allowing the State to ask the jury, during closing argument of the punishment phase, to put themselves in the complainant's shoes. Lastly, he contends the trial judge was biased against him. We affirm.
Appellant frames the issue in his brief as the trial court violated his due process rights by issuing an advisory opinion during trial. However, based on counsel's statements during oral argument, we interpret his arguments as complaining about the trial court's bias throughout trial and will address it as such.
Background
In 2008, appellant was released from prison and reunited with his family. Soon after his release, he sexually assaulted, D.A., his twelve-year old daughter. She testified her father asked her to take a bath but before she got into the bathtub, he grabbed her by the arm and threw her on the bed. She then described how appellant "put his private in mine" and "went up and down on top of me." D.A. did not immediately tell anyone about the assault because appellant threatened to "come back and get [her]." She believed his threat because she knew he was in a gang and had killed people. She later told her grandmother about the assault, and D.A. reported the incident to police. Appellant was convicted of aggravated sexual assault of child under the age of fourteen and sentenced to ninety-nine years in prison. This appeal followed.Exclusion of a Recent Sexual Assault Allegation
In his first issue, appellant argues the trial court abused its discretion by excluding a recent sexual assault allegation by D.A. He argues it went to his defensive theory that D.A. had a motive for falsely accusing appellant of sexual assault because she wanted to get out of the hostile living situation with her mother. The State responds nothing in the record establishes a false allegation; therefore, it could not be used to show any motive for lying about appellant's sexual assault. A trial court's ruling on the admission or exclusion of evidence is reviewed under an abuse of discretion standard. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement. Id. Texas Rule of Evidence 412 states that "in a prosecution for sexual assault or aggravated sexual assault . . . evidence of specific instances of an alleged victim's past sexual behavior is also not admissible unless . . . it is evidence that relates to the motive or bias of the alleged victim." Tex. R. Evid. 412(b)(2)(C). Here, appellant wanted to introduce evidence regarding an incident in which D.A. allegedly performed oral sex on an eighth grade boy in the hallway during school. The Dallas Independent School District report stated D.A. had written a note to a friend in which she described performing oral sex. The note was taken up by a teacher and later given to D.A.'s mother during a conference. The report contained inconsistent stories regarding whether D.A. approached the boy and offered to perform oral sex or whether he asked her to do it. No further action or investigation was ever taken regarding the incident. After hearing arguments from both sides, the trial court ruled that it appeared the encounter was consensual and nothing indicated a false allegation; therefore, the evidence was inadmissible at that time. The court further stated "I'm not saying no forever, I'm just saying no right now. It could resurrect itself somehow." Appellant relies on Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) to support his position the evidence was admissible. In that case, the court of criminal appeals determined the trial court abused its discretion by excluding the complainant's medical records from a sexual assault examination. Id. The medical records showed the complainant had told the examining nurse a young man sexually assaulted her, which allegedly occurred one month after moving in with the defendant, her father. Id. at 559. She also told the nurse she was particularly angry at her father, who took her for the exam, because he wanted to prove she had sexual intercourse. Id. at 567. While the appellant was allowed to question the complainant generally about her motive to falsely accuse him, the jury did not know she was particularly angry with him for taking her to the hospital for the exam. Id. The record also revealed she threatened to commit suicide shortly after the exam and was admitted to a state hospital. Id. at 567. Her accusations against appellant occurred approximately one month after her release from the hospital. Id. The court concluded this was strong evidence of the complainant's motive to falsely accuse appellant of sexual assault. Id. We do not find Hammer persuasive. Unlike Hammer, nothing in the record indicates D.A. made any false rape allegation. Rather, the DISD report indicates she described the hallway incident in a private note to a friend that was later retrieved by a teacher; therefore, there is no indication D.A. intended to report the incident to an adult. Further, while the report contains inconsistent stories about who initiated the contact in the hallway, D.A. did not deny that she did in fact perform oral sex on the young man. Thus, while the law allows appellant to offer evidence of a prior false accusation of sexual activity to support a defensive theory, nothing in the record before us proves D.A. made a false allegation. Further, we agree with the State that appellant has failed to establish how admission of this evidence was relevant to his defensive theory that D.A. made sexual assault allegations to garner attention in order to escape her home life. There is no evidence that suggests a report of sexual contact between two middle-schoolers would have resulted in D.A.'s removal from her mother's home-a home in which her abuser did not reside. Thus, the trial court did not abuse its discretion by excluding the evidence. Appellant's first issue is overruled.Formal Bill of Exception
In his second issue, appellant argues the trial court erred by not allowing him to make a formal bill of exception in question and answer form. The State contends appellant failed to properly preserve the issue. When evidence is excluded, the right to make an offer of proof or perfect a bill of exception is absolute. Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994); Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). To preserve the record for appeal, the party offering the excluded evidence may make an offer of proof in the form of a concise statement or in question and answer form. Flores v. State, 920 S.W.2d 347, 352 (Tex. App.-San Antonio 1996, pet. ref'd). If the party requests it, the trial court is required to direct the making of an offer of proof in question and answer form. Id.; see also Tex. R. Evid. 103(b). After the trial court sustained the State's objection to the admission of the DISD report, appellant's counsel requested the opportunity to make an offer of proof. The following exchange between counsel and the trial court occurred:Counsel: I'd probably make an offer of proof.
Court: Go ahead and do it now.
Counsel: I'd also like — I'll do a lawyer's offer of proof, and then also request to do an offer of proof with the witness at the Judge's — the Court's discretion.
Court: No, make — just make your offer of proof.
Counsel: Okay.Counsel then proceeded to provide a concise statement for the record regarding his offer of proof. He explained how the recent allegations went to the defensive theory of D.A.'s ongoing attempt to be taken from her living environment, which went to her motive to make false allegations. He specifically stated "we believe that goes to show she has some motive of retribution, and she uses false allegations to get to that against her father, against her mother . . . against this boy." While appellant argues the trial court denied him his absolute right to present his offer of proof in question and answer form, we agree with the State that he has failed to preserve his issue for review. We find Flores instructive. In that case, counsel made an offer of proof in the form of a summary statement of what the witness would have testified to. Flores v. State, 920 S.W.2d at 352. At the conclusion, counsel stated:
Your Honor, the only thing I would have left is my Bill of Exception. If the Court will — is not going to allow me to make that, then — I would either want to make a Bill of Exception or the Court can accept my offer of proof. But I do want it in the record.Id. When appellants argued on appeal that the trial court erred by refusing to allow them to make a bill of exception in question and answer form, the appellate court concluded they failed to preserve the issue. Id. "As clearly indicated by the record, appellants waived any complaint . . . when they gave the trial court the option of `accepting' their offer of proof in summary form, and failed to insist on the question and answer format." Id. Similarly, here appellant first stated he wanted to make a "lawyer's offer of proof" and then requested to make an offer in question and answer format at "the Court's discretion." Thus, he gave the trial court the option to accept his concise statement as his offer of proof. When the trial court told him to "just make your offer," counsel stated "okay" and proceeded. He did nothing further to insist on the question and answer format. Failure to insist on the question and answer format is a significant factual distinction from Spence v. State, a case appellant relies upon in his brief. In that case, trial counsel "fervently and continuously requested the opportunity to make an offer, but was just as fervently precluded from doing so." Spence, 758 S.W.2d at 599. Here, counsel did not continue to demand the question and answer format. Appellant also cites Kennedy v. State, 193 S.W.3d 645 (Tex. App.-Fort Worth 2006, pet. ref'd). However, we also conclude that case is distinguishable. There, the trial court denied the party's request to make an offer by stating "You're making a request for a bill, and I'm not going to grant it at this time." Id. at 651. Here, the trial court did not completely deny appellant the opportunity to make an offer of proof, and in fact, allowed the offer of proof essentially in the manner requested. Accordingly, appellant has failed to preserve his issue for review. His second issue is overruled.
Argument During Punishment
In his third issue, appellant contends the trial court erred by overruling his objection to the State's improper argument during the punishment phase. He claims the State asked the jury to put themselves in the victim's shoes. The State responds it did not ask the jury to put themselves in the victim's shoes but was making a plea for law enforcement. We agree with the State. We review a trial court's ruling on objections to argument for an abuse of discretion. Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.-Fort Worth 2006, pet. ref'd). Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) plea for law enforcement; and (4) response to opposing counsel. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). In making jury argument, wide latitude is allowed without limitation in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). If we determine the argument falls outside these four categories, we must then determine whether, in light of the record as a whole, there is a reasonable probability the improper argument might have contributed to appellant's punishment. Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). Even if the argument exceeds the bounds of proper jury argument, reversible error occurs only when, in light of the record as a whole, the argument is extreme, manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceedings. Felder, 848 S.W.2d at 95. The State specifically argued as follows:Now's where the rubber meets the road. This is the most important time of our life and in his life. And I'll tell you why. Because you can count yourself among the lucky ones. You've seen his face. You know what he looks like. Some day if you're walking down the street and you see-."Appellant then objected that "he's putting the jurors in the shoes of the victim." The trial court overruled the objection. The State continued to argue as follows:
Some day if you're walking down the street and you see Red Jesus, KP, Los, the lieutenant of the prison gang Bloods, you know to turn like hell and run the other way. And you know why? Because this guy is dangerous. He's the kind of guy that can go to prison. Prison, not jail, not probation, prison, lock down prison and within three days of being released, rape his own daughter.A jury argument expressly urging the jury to place themselves in the shoes of the victim is a plea for abandonment of objectivity and is not permissible. Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985) (holding argument improper when prosecutor asked the jury to think about how they would feel if they lost a child). Further, the State should not go beyond the record and attempt to entice the jury to punish based on emotion, rather than impartiality. Id. Here, the State did not ask the jury to step into the shoes of the victim. It did not ask them to think about what it would be like to be a twelve-year-old girl who was raped by her father or to think about what it would be like if their child had been raped. Rather, the State relied on evidence in the record to show appellant was a dangerous gang member who was capable of committing terrible acts against his own family. If anything, the State was making a plea for law enforcement. A reference to the community that asks the jury to represent the community is a proper plea for law enforcement. Rivera v. State, 82 S.W.3d 64, 69 (Tex. App.-San Antonio 2002, pet. ref'd). Read in context, it is apparent the State was arguing that appellant is a dangerous man to the community and should be punished accordingly. See, e.g., Patterson v. State, 632 S.W.2d 809, 812 (Tex. App.-Houston [14th Dist.] 1982, pet. ref'd) (holding "people like this defendant . . . they are the reason you walk a little quicker at night, that you look over your shoulder" was a proper plea for law enforcement). Thus, the trial court did not abuse its discretion in overruling appellant's objection. His third issue is overruled.
Bias of Judge
In his final issue, appellant alleges his due process rights were violated because the trial court lacked neutrality and issued an improper advisory opinion during trial. However, during oral argument, he stated he is not arguing the error of the advisory opinion itself, but rather that the advisory opinion is the best evidence of lack of neutrality. Thus, we will address his argument accordingly. When an appellant claims judicial bias, we review the record to see if it shows the judge's bias denied him due process of law. Ex parte Freeman, 778 S.W.2d 874, 877 (Tex. App.-Houston [1st Dist.] 1989, no pet.). The terms "bias" and "prejudice" do not encompass all unfavorable rulings towards an individual or his case, but instead must "connote a favorable or unfavorable disposition or opinion that is somehow wrong or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree." Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.-San Antonio 2007, pet. ref'd) (citing Liteky v. United States, 510 U.S. 540, 550 (1994)). Appellant relies on Abdygapparova to support his argument. In that case, the trial court engaged in several instances of ex parte communications with the State, including passing notes during voir dire. Id. at 198, 206-07. However, in addition to the ex parte communications, the court of appeals concluded the record as a whole demonstrated a bias towards Abdygapparova. The appellate court specifically noted the admission of damaging evidence that clearly should not have been admitted and its concern that the trial court did not allow an interpreter. Id. at 199-204. After reviewing the record in this case, we cannot conclude the trial judge held any bias or prejudice against appellant. None of the trial court's statements or actions are nearly as egregious as those in Abdygapparova. While some statements may well show the judge was critical or disapproving of appellant, "expressions of impatience, dissatisfaction, annoyance, or even anger" in the ordinary conduct of courtroom administration do not establish bias. See Liteky, 510 U.S. at 555. Appellant cites to several places in the record where the judge "sarcastically" questioned trial strategy or the legitimacy of appellant's arguments. However, tone and demeanor are not apparent from a cold record. See, e.g., Ramirez v. State, 76 S.W.3d 121, 129 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (noting tone of appellant's remarks and his demeanor in the courtroom are unapparent from a cold record). Thus, based on a cold reading of the record, we cannot determine whether the judge made sarcastic remarks. In some instances, it appears the trial judge was trying to instruct and assist the defense on certain issues. While appellant argues the advisory opinion issued from the bench is the best evidence of the trial court's bias, we do not agree. We recognize judicial power does not include the power to issue advisory opinions. Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1986) (op. on reh'g), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). An advisory opinion results when a court attempts to decide an issue that does not arise from an actual controversy capable of final adjudication. Id. As brief background, appellant tried to present testimony that D.A.'s mother wanted to give up custody rights because of D.A.'s behavioral problems. Appellant argued this supported his defensive theory that D.A. made up stories to garner attention. Although the trial court agreed the evidence was hearsay, it ruled it could come in. However, the trial court then stated the following:If-when the State recalls the mother and-and asks them, did you say this, and she says, yes, that-that conversation happened-and I don't know if it happened or not-but if she says, yes, we had that conversation. The next question out of their mouth is going to be, why? We were having so much trouble. And here is-she says one of the reasons is because dad was in prison. Well, you opened the door because you asked the-the-the question. They're allowed to explain why.Appellant claims these statements were an advisory opinion on issues the State never brought before the trial court because the State never expressed its intent to rebut the conversation with extraneous offense evidence of appellant's past prison time. Our reading of the record concludes otherwise. After a hearing off the record, the parties continued to ague their objections on the record. The State argued if appellant was allowed to bring in evidence of D.A.'s problems, then "we at least should be allowed to bring in an explanation of that." While this statement does not specifically mention appellant's previous prison time, appellant stated on the record, immediately before the trial court's alleged advisory opinion that "then the State's going to be allowed to rebut that with evidence that our client was in prison." Thus, the trial court clearly knew what rebuttal evidence the State was prepared to present when it made its ruling. The court was not attempting to decide an issue that did not arise from an actual controversy before it. Id. Accordingly, we agree with the State that the trial court did not issue an advisory opinion indicating a lack of neutrality. Appellant's final issue is overruled.