Opinion
NO. 02-14-00444-CR
08-31-2016
TRAVIS REED APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1302271D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Travis Reed appeals from his conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). In three points, appellant complains that his due process rights were violated when the State failed to disclose impeachment evidence, that the jury charge on punishment violated his due process and due course of law rights, and that the $250 "DNA Testing Fee" assessed as court costs was unconstitutional.
Background
Appellant was a volunteer firefighter and medic and a volunteer with the children's ministry and the youth program at a church in Azle. The complainant in this case met appellant through the children's ministry.
The complainant, who was fourteen years old at the time of trial, testified that during a father-son campout sponsored by the church, appellant put his hands inside of the complainant's sleeping bag and rubbed the complainant's stomach and buttocks. The complainant was nine or ten years old at the time, and he did not tell anyone about what had happened at the time because he was scared. Appellant testified at trial and denied touching the complainant.
A little less than a year later, appellant hosted a bonfire and sleepover at his home for male church members. The complainant testified that appellant suggested that they share a sleeping bag but that he found a spare sleeping bag in appellant's shed and slept in it by himself. That night, appellant put his hands inside the complainant's pants and touched his genitals, stomach, and back. This allegation formed the basis for the charged offense.
The State alleged in the indictment that on or about November 26, 2011, in Tarrant County, Texas, appellant intentionally, with the intent to arouse or gratify his desire, engaged in sexual contact by touching the genitals of the complainant, a child younger than seventeen years of age. See Tex. Penal Code Ann. § 21.11(a)(1).
The complainant again testified that he did not tell anyone what had happened at the time because he was scared, and appellant testified that the contact did not occur. An adult chaperone at the bonfire testified that due to the number of people present and the size of the room, the contact could not have occurred because there were "way too many people that were present for that to occur."
Approximately twelve to fifteen people attended the sleepover, and they all slept in one room. The chaperone testified that the room was approximately ten by fifteen feet in size and that everyone was within one to two feet of each other. He also testified the wood floor creaked whenever there was movement.
Appellant, along with two other adults, taught Mixed Martial Arts (MMA) classes at the church. The complainant attended the classes. He testified that appellant told the boys to order very short MMA shorts and wear them to class. He further testified that appellant picked him up by his shorts and looked under them. At trial, appellant denied that this took place.
The complainant also testified that on another occasion, appellant took him and another child to a movie and that during the movie, appellant rubbed and tickled the complainant. The complainant further testified that on another occasion, appellant took him to eat at a Dairy Queen on the way home from a Pee Wee football game. Appellant sat next to the complainant in a booth and rubbed the complainant's thigh. Appellant denied sitting next to the complainant and rubbing his thigh.
The State called D.D. as a rebuttal witness. D.D. was seventeen at the time of the trial. D.D. testified that he attended the same church as appellant and the complainant and that he knew both of them through church. D.D. further testified that appellant took a special interest in him and tried to be a "special friend" to him. The two of them would do things together and hang out together.
D.D. testified that he took MMA classes with the complainant at church. According to D.D., appellant required the boys to wear very short shorts during the classes. D.D. stated that he felt very uncomfortable in class when appellant made them spread their legs to stretch and that he noticed appellant trying to look up his shorts in order to see his "privates." D.D. also testified that during a tour of the fire department, appellant "pantsed" him, meaning that appellant yanked D.D's shorts and underwear down to the ground, leaving D.D. uncovered from the waist down. D.D. was fourteen or fifteen at the time. Appellant denied that he "pantsed" D.D.
The jury found appellant guilty of indecency with a child as charged in the indictment. At punishment, the jury charge contained language authorized by statute regarding good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, § (4)(a) (West Supp. 2016). The jury assessed appellant's punishment at eight years' confinement, and the trial court sentenced him accordingly. The bill of costs assessed a $250 "DNA Testing Fee" as court costs.
Appellant timely filed a motion for new trial that claimed, in part, that the State withheld exculpatory evidence relevant to D.D. No hearing was held on the motion. Appellant's motion for new trial was deemed denied on December 30, 2014. See Tex. R. App. P. 21.8(a) ("The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court."), (c) ("A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.").
The trial court imposed appellant's sentence in open court on October 16, 2014. Thus, his amended motion for new trial, which was filed on December 23, 2014, was untimely. See Tex. R. App. P. 21.4(b) ("Within 30 days after the date when the trial court imposes . . . sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.").
Alleged Brady Violation
Appellant argues in his first point that his due process rights were violated when the State failed to disclose evidence that he could have used to impeach D.D., the State's rebuttal witness. D.D. testified that he left public school in the middle of his sophomore year, was homeschooled, and graduated from homeschool in June 2014. Appellant alleges that the State violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose D.D.'s school records, which appellant contends show that D.D. had disciplinary problems, was removed from school due to repeated disciplinary problems, had poor grades and was considered an "at risk" pupil at the time he withdrew from public school. Appellant asserts that had this information been provided to him, he could have cross-examined D.D. more effectively because "[D.D.'s] lack of veracity as demonstrated by explicit reference to the education records would have shown the jury that [he] lacked all credibility." Appellant contends that there is a reasonable probability that had this evidence been disclosed, the outcome of the trial would have been different.
While his motion for new trial was pending, appellant obtained D.D.'s school records from Azle I.S.D. through a subpoena.
The State argues that appellant waived this complaint by failing to request a hearing on his motion for new trial. In support of its argument, the State cites Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005), and Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993). These cases address whether the trial court abused its discretion by failing to hold a hearing on a defendant's motion for new trial. See Rozell, 176 S.W.3d at 229-30; Reyes, 849 S.W.2d at 815-16. No hearing was held on appellant's motion for new trial, but this is not his complaint on appeal. Thus, the cases cited by the State are inapposite to error preservation in this case.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
Appellant's motion for new trial was presented to the trial court. When the trial court failed to timely rule on the motion by written order, the motion was deemed denied on December 30, 2014. See Tex. R. App. P. 21.8(a), (c). Thus, we conclude appellant preserved his Brady complaint by raising it in his motion for new trial. See generally Pena v. State, 353 S.W.3d 797, 807-09 (Tex. Crim. App. 2011) (holding defendant preserves Brady error by raising issue in motion for new trial if nondisclosure not discovered until after jury retires to deliberate).
Due process required the State to disclose favorable, material evidence to appellant. See Brady, 373 U.S. at 87, 83 S. Ct. 1196-97. To establish reversible error for a Brady violation, appellant was required to show that: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. See Pena, 353 S.W.3d at 809; Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). With respect to the first prong, the State has a constitutional duty to disclose to a defendant material exculpatory and impeachment evidence in its possession. See Pittmanv. State, 372 S.W.3d 261, 269 (Tex. App.—Fort Worth 2012, pet. ref'd) (citing Pena, 353 S.W.3d at 810). This duty also requires the State to learn of Brady evidence known to others acting on the State's behalf in a particular case. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (citing Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68 (1995)); see Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) ("Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because 'the State' includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case."); Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 873 (1998) (noting that Brady requires the State to disclose material exculpatory evidence in the possession of police agencies and other parts of the prosecutorial team). The State does not have such a duty if the defendant was actually aware of the evidence or could have accessed it from other sources. Pena, 353 S.W.3d at 810; see Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976), cert. denied, 434 U.S. 1047 (1978) (concluding prosecution did not violate duty to disclose favorable evidence when the evidence was available to defendant through a subpoena).
No evidence was attached to appellant's motion for new trial. But, on December 23, 2014, the same day appellant filed his untimely amended motion for new trial, appellant filed with the trial court a business records affidavit executed by a custodian of records for Azle I.S.D. with D.D.'s school records attached. We have reviewed those records, which appellant obtained with a subpoena. Appellant does not argue nor does the record before us show that the State or anyone acting on the State's behalf had possession of D.D.'s school records or had knowledge of the information contained therein. Appellant also does not argue nor does the record show that Azle I.S.D. was acting on the State's behalf in this case. Accordingly, appellant has not satisfied the first prong of the three-pronged test to establish reversible error under Brady. We overrule appellant's first point.
Jury Charge on Punishment
In his second point, appellant argues that the trial court's charge on punishment violated his rights to due process and due course of law. See U.S. Const. amends. V, XIV; Tex. Const. art. I, §§ 13, 19. He contends that the jury instruction on good conduct time, which he acknowledges tracks the language of and is authorized by article 37.07, section 4(a) of the Texas Code of Criminal Procedure, "sow[ed] confusion in the minds of the jury" because his parole cannot be affected by the accumulation of good-conduct time.See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (requiring jury instruction during punishment phase to inform jury of existence and mechanics of parole law and good-conduct time). He asserts that the instruction was an incorrect statement of the law and was therefore erroneous and unconstitutional as applied to him.
Under the law applicable to appellant's conviction for indecency with a child by contact, he is not eligible for release on parole. See Tex. Gov't Code Ann. § 508.149(a)(5) (West Supp. 2016); Tex. Penal Code Ann. § 21.11(a)(1).
Appellant acknowledges that that the court of criminal appeals has considered and rejected a similar argument in Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002). He contends he brings this complaint "to preserve the issue for further review." In Luquis, the court of criminal appeals acknowledged that the instruction dictated by the code of criminal procedure may appear to be misleading and inapplicable to some defendants. Id. at 362-63. Nevertheless, the court held that the instruction under article 37.07, section 4 is statutorily required to be given even if the instruction has no effect on a defendant's eligibility for parole. Id. at 363. Accordingly, a trial judge who gives the instruction does not commit error. Id. The court further concluded that even if the statutorily required instruction was inapplicable, the instruction did not violate a defendant's due process or due course of law rights. Id. at 364-68.
This court is bound by the precedent of the Texas Court of Criminal Appeals and has no authority to disregard or overrule it. See Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.—Fort Worth 2004), aff'd, 218 S.W.3d 85 (Tex. Crim. App. 2007). Accordingly, following Luquis, we hold that the trial court's charge did not violate appellant's rights to due process and due course of law. See Luquis, 72 S.W.3d at 363, 368; see also Sanders v. State, 255 S.W.3d 754, 765-66 (Tex. App.—Fort Worth 2008, pet. ref'd) (following Luquis and noting that in Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.—Fort Worth 2000, pet. ref'd), our court also determined that a jury charge like the one here does not violate a defendant's due process rights). We overrule appellant's second point.
The $250 "DNA Testing Fee"
In his third point, appellant argues that article 102.020(a)(1) of the Texas Code of Criminal Procedure, which authorized the trial court to assess the "DNA Testing Fee" as court costs is facially unconstitutional. Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (West Supp. 2016). Appellant relies on the First Court of Appeals's opinion Peraza v. State and the arguments made therein to support his argument. 457 S.W.3d 134 (Tex. App.—Houston [1st Dist.] 2014), rev'd, 467 S.W.3d 508 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). After appellant and the State filed their briefs in this case, the Texas Court of Criminal Appeals reversed the decision upon which appellant relies and concluded that article 102.020(a)(1) is not facially unconstitutional. Peraza, 467 S.W.3d at 510; see Barefield, 2016 WL 551890, at *1. Again, this court is bound by the precedent of the Texas Court of Criminal Appeals and has no authority to disregard or overrule it. See Sierra, 157 S.W.3d at 60. We overrule appellant's third point.
It does not appear that appellant raised this complaint in the trial court. However, a claim regarding court costs need not be preserved at trial to be raised for the first time on appeal. See Perez v. State, 424 S.W.3d 81, 84 (Tex. Crim. App. 2014); Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014); Barefield v. State, No. 02-14-00336-CR, 2016 WL 551890, at *1 n.2 (Tex. App.—Fort Worth Feb. 11, 2016, pet. ref'd) (mem. op., not designated for publication). --------
Conclusion
Having overruled each of appellant's points, we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 31, 2016