Summary
holding requisite intent could be inferred from evidence of repeated sexual contact, threats to rape the victim if she told anyone, and defendant's love letters to the victim
Summary of this case from In Matter of D.B.Opinion
No. 04-02-00132-CR
Delivered and Filed: May 14, 2003. Do not publish.
Appeal From the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CR-3542, Honorable Pat Priest, Judge Presiding. AFFIRMED
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Larry Keele appeals the judgment convicting him of three counts of indecency with a child and sentencing him to forty-five years on each count. We affirm. 1. In his first point of error, Keele argues the evidence is legally insufficient to support "the jury's finding that the alleged offenses were committed with the intent to arouse and gratify the sexual desires of any person." We disagree. The requisite specific intent to arouse or gratify sexual desires may be inferred from the "defendant's conduct, his remarks, and all surrounding circumstances." See Ranson v. State, 707 S.W.2d 96, 97 (Tex.Crim.App.), cert. denied, 479 U.S. 840 (1986). Here, the requisite specific intent to arouse or gratify sexual desires may be inferred from E.E.'s testimony that Keele touched her breasts and genital areas several times and Keele had threatened to rape her if she told anyone, as well as the letters written by Keele professing his love for E.E., offering his continued support, and acknowledging that his actions were likely to result in his arrest. See Branson v. State, 825 S.W.2d 162, 168 (Tex.App.-Dallas 1992, no pet.) (holding evidence sufficient to support conviction for indecency with child when defendant told victim not to tell anyone what had happened or he would hurt her); Shane v. State, 685 S.W.2d 89, 91 (Tex.App.-Beaumont 1984, no pet.) (holding evidence that defendant told victim not to tell anyone about abuse supported inference that defendant knew act was wrong and was committed with intent to arouse or gratify defendant's sexual desire). We hold this evidence, when viewed in the light most favorable to the verdict, is legally sufficient for a rational trier of fact to find that Keele acted with the intent to arouse or gratify his sexual desire. 2. In his second point of error, Keele argues the evidence is factually insufficient to support the jury's finding of guilt. We again disagree. Although her testimony was internally inconsistent, the fact remains that E.E. testified that Keele touched her "privates" while in his truck and her "chest and privates" on multiple occasions. The jury was presented with the conflicting testimony and obviously decided the credibility issue in favor of E.E. and against Keele. We are not authorized to intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Washington v. State, 930 S.W.2d 695, 701 (Tex.App.-El Paso 1996, no pet.). 3. In his third point of error, Keele argues the trial court abused its discretion in admitting his April 7, 2000 letter, in which Keele expressed his love for E.E. and promised to give her $200 a month through a third party, over his objection that the letter was inadmissible under Rule 403, Tex.R.Evid., because it "could almost certainly have led the jurors to believe that there were sexual undertones to it" "completely out of proportion to the innocent tone and intent of the letter." We again disagree. As Keele admits, the letter "was, in its way, a love letter from a middle-aged man to a pre-teen girl"; and, as the State argues, the "love letter demonstrates the inappropriateness of the relationship being perpetuated by [Keele] even from his jail cell" and "make[s] it more likely that he behaved indecently with [E.E.]." Of course the letter was prejudicial. But it was not unfairly so. See Tex.R.Evid. 403. 4. In his fourth point of error, Keele argues the trial court reversibly erred in admitting his jail cell letters to E.E.'s mother because there is "no evidence that these duplicates were accurate reproductions of the originals." However, E.E.'s mother identified Keel's handwriting and testified that the copies of the letters offered by the State were fair and accurate representations. Moreover, Keele's complaint on appeal does not comport with his complaint at trial regarding the State's "inability to adequately explain the lack of the original"; he did not question the authenticity of the duplicates at trial. Therefore, the error, if any, in admitting the letters was waived. See Tex.R.App.P. 33.1(1); Tex.R.Evid. 1003; United States v. Enstam, 622 F.2d 857, 866 (5th Cir. 1980), cert. denied, 450 U.S. 912 (1981) (holding defendant's objection to document based on the lack or disappearance of the original was not the equivalent of an attack on the document's authenticity). 5. In his fifth point of error, Keele argues the trial court abused its discretion in denying his motion for a mistrial (and his motion for a new trial on the same ground) after one of the State's witnesses testified regarding an extraneous offense. We again disagree. "[M]istrials are an extreme remedy for prejudicial events occurring during the trial process. Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant's option, our law prefers that the trial continue." Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). "Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted." Id. During the direct examination of Lilly Lucas, the State asked about her relationship with Keele and her knowledge of Keele's relationship with E.E.:
State: So what is the next thing that you remember about Larry Keele?
Witness: The next thing?
State: Uh-huh.
Witness: Well, time went by. And I figured, you know, he was so busy with other things. I hadn't seen him too often.
But he came by. And it was, I want to say, Tuesday, because my husband was taking English at the high school. And he came by, and he was very depressed.
I mean, really, — I mean like, his mind wasn't even there. I talked to him, and I would go (descriptive sound). "I am talking to you, Larry." You know, and he — and I would go, "What's the matter?"
And he says, "I am not sure who reported me, but someone reported to Child Human Resources that I was around Lizzy a lot."
And I go, "So, what is so big about that?" And I said, "Huh-uh. Come on, don't tell me because you have that case pending" —
Defense: Objection.
Witness: — "you know, the attempted rape."
Defense: Objection
Court: Sustained
State: Okay. Listen to the question that I asked you.
Witness: Uh-huh.
State: Okay?
Witness: Uh-huh.
State: All right.
Witness: You asked me when was the next time I saw him.
State: When was the next time you saw him?
Witness: That is when I saw him.
State: He came to your house?
Witness: Uh-huh.
State: Okay. Did you-all do anything after he came to your house?
Witness: Yes. I told him, "My husband is going to go to school, and I will talk to you. And we can go to, like, Luby's, or anyplace you want to meet, and I will talk to you and see what all this is about."At this point, defense counsel moved for a mistrial; and the State assured the court that it had properly instructed the witness regarding extraneous offenses. The trial judge denied the motion, stating as follows: I believe that the jury might very well believe that that reference was to this case. And if we — if I — I don't even want to instruct them. Because if I instruct them, it is going to, I think, suggest to them that it is not about this case, but about some other case. The court then admonished the witness to answer only the questions asked. Keele does not complain of the trial court's decision to not give a curative instruction; he complains only of the trial court's denial of his motion for a mistrial and his motion for a new trial. Under these circumstances, we hold the trial court did not abuse its discretion in denying Keele's motions. The reference to the extraneous offense of attempted rape was unresponsive and fleeting; the trial court promptly sustained Keele's objections; and the effect of the inadmissible testimony was undoubtedly dissipated during the innocuous questioning that occurred between defense counsel's objections and his request for a mistrial. And, as the experienced trial judge noted, it may well be that the jurors mistakenly understood the reference to be the case on trial, even though this would have been illogical given the context of the statement, as Keele argues. The trial court's judgment is affirmed.