Opinion
No. 05-07-00127-CR
Opinion Filed December 4, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 15th District Court Grayson County, Texas, Trial Court Cause No. 053786-15.
Before Justices MORRIS, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Appellant William Jay Clark was convicted of aggravated sexual assault of a child and sentenced to life in prison. In six issues, appellant generally contends the trial court abused its discretion by denying a motion for mistrial and by failing to strike certain jurors for cause. He also complains of several evidentiary rulings. We affirm the trial court's judgment.
Background
Because appellant does not challenge the sufficiency of the evidence and the parties are familiar with the facts, we provide only a brief rendition of the facts. See Tex. R. App. P. 47.1. Complainant, who is appellant's cousin, often spent time at appellant's house babysitting his children. When complainant was nine years old, appellant tried to touch her inappropriately, but she stopped him. Later when she was eleven, he penetrated her both vaginally and anally. He also made her perform oral sex on him while he performed it on her. At other times, he would touch her private parts with a light bulb and a children's toy sword. Appellant was charged with (1) intentionally and knowingly causing the penetration of the sexual organ of a child under the age of fourteen by his sexual organ, (2) intentionally and knowingly causing the penetration of a child under the age of fourteen by his sexual organ, and (3) intentionally and knowingly causing the penetration of the sexual organ of a child under the age of fourteen by his tongue. A jury found appellant guilty, and the trial court sentenced him to life imprisonment. This appeal followed.Denial of Motion for Mistrial
In his first issue, appellant asserts the trial court abused its discretion by denying his motion for mistrial under Texas Rule of Appellate Procedure 21.3(f) because the jury received detrimental evidence after it retired to deliberate. See Brown v. State, 92 S.W.3d 655, 661 (Tex.App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003) (denial of motion for mistrial reviewed under abuse of discretion standard). During deliberations, the foreman requested all exhibits from the trial, and the court inadvertently included defense exhibit 1, which it admitted for record purposes only during a bill of exception. The exhibit contained information from an interview between complainant and Renee Diehl, a caseworker with the Department of Human Services in Oklahoma. The exhibit contained allegations against appellant and also allegations involving complainant's older sister and their father, which the jury did not hear during trial. The parties learned the exhibit went to the jury room after the jury returned a guilty verdict. Appellant then moved for a mistrial. After an evidentiary hearing, in which each juror testified, the trial court denied appellant's motion. Texas Rule of Appellate Procedure 21.3(f) provides a defendant must be granted a new trial "when after retiring to deliberate, the jury has received other evidence. . . ." Tex. R. App. P. 21.3(f). Although appellant requested a mistrial, courts have not distinguished between applying this rule for a mistrial or a new trial motion. See, e.g., Bustamante v. State, 106 S.W.3d 738, 743 (Tex.Crim.App. 2003); Woodall v. State, 77 S.W.3d 388, 392 (Tex.App.-Fort Worth 2002, pet. ref'd) (regarding cases involving rule 21.3(f) as instructive and considering them in determining whether the trial court erred in overruling motion for mistrial). Thus, we conclude authority interpreting rule 21.3(f) is instructive. To show jury misconduct, appellant must show the other evidence was actually received by the jury, and it was detrimental. Ford v. State, 129 S.W.3d 541, 548 (Tex.App.-Dallas 2003, pet. ref'd). In determining whether evidence was "received," we look to the context in which it was mentioned and the extent to which the jurors discussed it. Ford, 129 S.W.3d at 548. In Woodall, photographs not admitted into evidence were inadvertently sent to the jury room. 77 S.W.3d at 394. The court concluded the trial court did not abuse its discretion in denying a motion for mistrial because the jurors' uncontroverted testimony showed they immediately set the pictures a side when they realized they were not proper evidence, and they did not consider the pictures in reaching their verdict. Id. Here, unlike Woodall, all twelve jurors testified they did not remember seeing the exhibit; however, similar to Woodall, they did not consider it in reaching their guilty verdict. One particular juror said she would remember if she saw the exhibit or if they discussed it because the information in the report, specifically information involving pornographic movies, was nothing like what they heard in trial. It would have resulted in an "oh my goodness type of conversation." Appellant argues the exhibit influenced the verdict because the original vote was 11-1, but after the foreman requested the evidence, they reached a unanimous verdict. The foreman testified he did not recall seeing the exhibit or having any discussion about it. He also stated he changed his vote based on the trial testimony and not on the exhibits. Because the uncontroverted evidence shows the jurors did not consider or discuss defense exhibit 1, the exhibit was not "received" in violation of rule 21.3(f). Thus, the trial court did not abuse its discretion in denying appellant's motion for mistrial. Appellant's first issue is overruled.Voir Dire Challenges for Cause
In his third issue, appellant claims the trial court erred in denying challenges for cause for jurors Bodine and Rushing, and he was entitled to additional peremptory strikes. Although he names both jurors in his summary of the argument, he only provides support for Bodine in the argument and authorities section of the brief. Therefore, we conclude he has inadequately briefed and waived his argument regarding juror Rushing. Tex. R. App. P. 38.1(h). However, we will address his arguments regarding juror Bodine. During voir dire, appellant's counsel questioned the panel regarding their ability to afford appellant the presumption of innocence. Appellant challenged Bodine for cause because she could not presume him innocent. The defense may challenge a juror for cause if she demonstrates a bias or prejudice against the defendant or any facet of the law upon which the defendant is entitled to rely. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon 2006); Gipson v. State, 82 S.W.3d 715, 718 (Tex.App.-Waco 2002, no pet.). When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record and determine if sufficient evidence exists to support the court's ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out her oath and instructions in accordance with the law. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004). Before a prospective juror can be excused for cause on this basis, the law must be explained to her, and she must be asked whether she can follow that law regardless of personal views. Id. Great deference is given to the trial court's decision because the trial judge was present to observe the demeanor of the prospective juror and to listen to her tone of voice. Id. Particular deference is given when the potential juror's answers are vacillating, unclear, or contradictory. Id. Upon reviewing the record, it is clear Bodine vacillated in her answers regarding the presumption of innocence. When asked if she could presume innocence, she first responded "I don't know . . . I would like to think I could." When pressed further by counsel and asked "When you look inside yourself are you really presuming Mr. Clark innocent at this point?" She said "I honestly don't know." Counsel later brought her back in separately for further questioning: Defense: You said you didn't know if you could have-give the presumption of innocence.Bodine: Right. I — yeah, I'm not sure. I would like to think I could. At the beginning, even when I found out what the case was about and everything, I thought "Yeah, you know, I work with kids and I know how they can be, and I know"-you know, and I thought you know-but then, the more he started talking about presumption of innocence and the more, you know, I was thinking about the-like children-.
. . .
Defense: Okay. Well, then don't you think Mr. Clark deserves the same thing? I mean, don't you think you need to be sure?
Bodine: Yes. Yes, that's right. That's right.
Defense: And since you're not sure-
Bodine: I would want to be totally positive that I would be thinking, "Okay. This man is innocent in my mind until I hear otherwise."
Defense: But you're not sure.
Bodine: I would like-but I think I could do that.
Although Bodine first said she was not sure if she could presume appellant innocent, she later said she thought she could. An ambiguous or uncertain statement by a venireman does not unequivocally establish an individual's ability to follow the law. See Gipson v. State, 82 S.W.3d 715, 718 (Tex.App.-Waco 2002, no pet.) (jurors use of phrases such as "I'm not sure," "might," and "could" when describing whether they could be partial was not sufficient to remove for cause). Bodine did not unequivocally state she could not presume appellant innocent. Because she was a vacillating juror, we must defer to the trial court, which was in the best position to observe her demeanor and the tenor of her responses. Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App. 1996). Thus, the trial court did not abuse its discretion in denying appellant's challenge for cause or in denying his request for additional peremptory challenges. We overrule appellant's third issue.
Evidentiary Issues
We now turn to appellant's issues challenging the admission and exclusion of evidence. We review the trial court's determination to admit or exclude evidence under an abuse of discretion standard. Chaddock v. State, 203 S.W.3d 916, 923 (Tex.App.-Dallas 2006, no pet.). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Id.1.
Extraneous Offenses In his second issue, appellant asserts the trial court failed to conduct a proper rule 403 analysis before admitting other extraneous offenses under Texas Code of Criminal Procedure article 38.37. When the State tried to elicit testimony from complainant regarding these offenses, appellant objected the evidence was more prejudicial than probative of any relevant fact. The court overruled the objection because the testimony was relevant. Once appellant makes a Rule 403 objection, the trial judge must weigh the probativeness of the evidence to determine if it is substantially outweighed by its potential for unfair prejudice. See Tex. R. Evid. 403; Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997) (holding trial judge does not sua sponte engage in balancing the probative value against the prejudice, but does so only upon sufficient objection invoking rule 403). In keeping with the presumption of admissibility of relevant evidence, there is a presumption that relevant evidence is more probative than prejudicial. Santellan, 939 S.W.2d at 169. Appellant made a rule 403 objection to the extraneous offenses. Thus, the trial court was required to perform the rule 403 balancing test. Id. at 173. Although appellant asserts the trial court did not perform the balancing test, it did not explicitly refuse to do the test, but simply overruled appellant's objections. A trial judge is not required to sua sponte place any findings he makes or conclusions he draws when engaging in this test into the record, nor did appellant request such to be affirmatively shown. Williams v. State, 958 S.W.2d 186, 196 (Tex.Crim.App. 1997). Rather, a judge is presumed to engage in the required balancing test once rule 403 is invoked, and we refuse to hold a silent record implies otherwise. Id. We find nothing in the record to indicate that the trial court did not perform a balancing test or that appellant requested and the trial court refused to include its findings on the record. Thus, the trial court did not abuse its discretion in overruling appellant's objection to extraneous offenses. We overrule appellant's second issue.2.
Complainant's Statements to the Sexual Assault Nurse Examiner In his fourth issue, appellant claims the trial court abused its discretion by allowing a sexual assault nurse examiner to testify over his hearsay objection regarding statements complainant made three years after the alleged assault. He also contends the trial court erred in admitting the nurse's written report. The State argues the trial court properly admitted the evidence under the medical diagnosis and business records exceptions to the hearsay rule. See Tex. R. Evid. 803(4). The nurse testified that complainant told her the following:I was sexually abused by my father, Charles and my Uncle Billy, William Clark. My dad took my clothes off and he pulled my pants down and he tried to have sex with me in their room. He tried three or four times. Billy did the same to me. He tried to get me in my butt and my private and I started to bleed. He would try to do this every time I stayed all night with them. He put his mouth on my private and his private in my mouth. He would come in my mouth. He used toy swords and light bulbs to put inside my private. He would try to bribe me saying I was pretty. I told my dad and uncles what he was doing but he wouldn't do anything about him. The last time he did anything to me was about six months ago before we were taken away from our parents.It is well established that questions regarding the admission of evidence are rendered moot if the same evidence is introduced elsewhere without objection; thus, any error in admitting evidence over a proper objection is harmless. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex.Crim.App. 1999). After reviewing the record, we conclude the complainant testified, without objection, to most of the statements made by the nurse. Thus, any complaints regarding these statements are moot and harmless. However, the first three sentences involving the abuse by her father and the sentence that appellant would try to bribe her by saying she was pretty are inadmissible hearsay. We must now determine whether these statements harmed appellant. Texas Rule of Appellate Procedure 44.2(b) provides that we "must disregard a non-constitutional error that does not affect a criminal defendant's `substantial rights.'" Tex. R. App. P. 44.2(b). Under rule 44.2(b), we may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Bourque v. State, 156 S.W.3d 675, 677 (Tex.App.-Dallas 2005, pet. ref'd). After examining the entire record, we have fair assurance that the error, if any, did not have a "substantial and injurious effect or influence in determining the jury's verdict." Id. The statements involving abuse by complainant's father were irrelevant in determining whether appellant committed aggravated sexual assault in this case. If anything, it provided the jury with evidence of another potential abuser to explain the positive results of complainant's sexual assault examination; therefore, we cannot say he was harmed by this testimony. We further conclude the testimony regarding bribery is harmless. The jury heard compelling testimony regarding the sexual abuse; therefore, it is unlikely they determined his guilt based on this statement. The trial court did not abuse its discretion in allowing the nurse to testify over appellant's hearsay objection. Now, we address whether the trial court improperly admitted the nurse's medical report over appellant's hearsay objection. Appellant specifically objected the nurse failed to establish she was the custodian of records, and it was improper bolstering. The State responded it was properly admitted as a business record under rule of evidence 803(6). The trial court overruled the objection based on rule 803(6). Texas Rule of Evidence 803(6) provides that records kept in the course of a regularly conducted business activity are not excluded by the hearsay rule even though the declarant is available as a witness. Tex. R. Evid. 803(6). A document is properly admitted into evidence under the rule if it is established the document was (1) made at or near the time of the events they record, by or from information transmitted by a person with knowledge of the events; and (2) made and kept in the course of a regularly conducted business activity. Id. The necessary predicate for introduction of a business record may be shown by offering either (1) the testimony of a records custodian or other qualified witness, or (2) an affidavit that complies with rule 902(10). Id.; see also Tex. R. Evid. 902(10). Rule 803(6) does not require the witness laying the predicate to be the creator of the records or to have personal knowledge of the content of the records. Kan v. State, 4 S.W.3d 38, 45 (Tex.App.-San Antonio 1999, pet. ref'd). The witness need only have personal knowledge of the manner in which the records were prepared. Id. Here, the nurse testified the records were kept in the regular course of business at Texoma Medical Center. She was familiar with the records because she, as representative of TMC, made them. She created them near the time of the event and had actual knowledge of the event. Although she did not specifically say she was the custodian of records, the rule allows a qualified person to testify to such matters. See Tex. R. Evid. 803(6). She established she was qualified to testify, and her testimony laid the proper predicate for admission of the medical records under the business records exception to the hearsay rule. Appellant did not raise, nor does the record indicate, the records lacked trustworthiness. Thus, the trial court properly overruled appellant's hearsay objection. We further conclude that the admission of the medical records was not improper bolstering. Bolstering occurs when the testimony's sole purpose is to enhance the credibility of a witness or source of evidence, without adding anything to the proof of a relevant fact. Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim.App. 1993). The record does not indicate the State introduced the medical records for the sole purpose of enhancing the complainant's credibility or the credibility of any other evidence. Accordingly, the court properly overruled appellant's bolstering objection. We overrule appellant's fourth issue.