No. 05-02-01257-CR.
Opinion Filed April 29, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-70478-NR. Affirm.
Before Justices MORRIS, O'NEILL, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice O'NEILL
Appellant Aaron Swift appeals his conviction for aggravated sexual assault of a child, under fourteen years of age. After the jury found appellant guilty, the trial court assessed punishment at eight years' confinement. In his first four issues, appellant contends (1) the trial court erred in denying his motion to quash the indictment, (2) the trial court erred in excluding exculpatory testimony, (3) the evidence is factually insufficient to support the verdict, and (4) the current standard of review for factual sufficiency is erroneous. In his fifth and final issue, appellant requests that we review Texas Department of Protective and Regulatory Services records for exculpatory or mitigating evidence. For the following reasons, we resolve all issues against appellant and affirm the trial court's judgment.
Background
The grand jury indicted appellant for aggravated sexual assault of a child. Specifically, the indictment alleged appellant "on or about August 30, 1999" did "unlawfully then and there intentionally and knowingly cause the contact and penetration of the mouth of [D.L.J.], a child, with the sexual organ of [appellant], and, at the time of the offense, the child was younger than 14 years of age." At trial, D.L.J. testified she is twelve years old. Appellant is a friend of her twenty-seven year old brother, Michael. On some occasions, when Michael babysat her, appellant would also be present. On these occasions, appellant would sometimes "punish" her. Specifically, appellant would take D.L.J. to the bathroom, pull her pants and underwear down and spank her. Michael was never in the bathroom when appellant did this, and D.L.J. did not tell Michael what appellant was doing. On the day of the offense, D.L.J.'s parents went out to eat and Michael was again babysitting D.L.J. while appellant was visiting. Appellant took D.L.J. to the bathroom and spanked her. Appellant then told D.L.J. they were going to play a game. Appellant blindfolded D.L.J. with a towel and told her to get on her knees. D.L.J. heard appellant unzip his zipper. Appellant then told D.L.J. to open her mouth, and he put his "private" in her mouth. Appellant told D.L.J. not to bite, use her teeth, or anything like that. He did not move, but kept telling her not to bite. On cross-examination, D.L.J. testified she was not really sure when the offense occurred, but thought it was more than two years ago. She said on the day it happened, her parents were going on "something" like a date, but not a "honeymoon date." She was not sure if she had told anyone that it was a "honeymoon date." After D.L.J. told her mother about the offense, her mother took her to a therapist. D.L.J. denied that her mother promised her ice cream if she told the therapist what appellant did. D.L.J.'s mother (Mother) testified she has known appellant since he was in sixth or seventh grade because he was a close friend of her son Michael. Appellant and Michael remained friends into their mid-twenties. She had loved and trusted appellant who was close to the family and called her "Mom." Mother testified that sometime in 2000, when D.L.J. was ten, she decided to discuss sexual issues with D.L.J. Mother told D.L.J. about an incident that she had when she was a child when she played "show and tell" with her two cousins. When she cautioned D.L.J. about playing such games, D.L.J. became agitated. D.L.J. then told Mother about the offense. Specifically, D.L.J. told Mother that appellant had blindfolded her and put something in her mouth. When Mother asked what, D.L.J. pointed to her genital area. Mother did not initially report the incident to police, fearing they would be insensitive to her daughter. Instead, after about a month, she took her daughter to their family therapist. Because D.L.J. was reluctant to tell the doctor what happened, Mother told D.L.J. they could go get ice cream after she told. Mother testified she was unclear on when the offense occurred. D.L.J. had told her it happened when she and her husband went on a "honeymoon date," which could refer to her April 25th anniversary. However, appellant often had access to her daughter and the offense could have happened anytime. Mother testified that after the offense, she continued to allow D.L.J. to visit her friend Meagan who lived next door to appellant. She claimed she told Meagan's parents what had happened to ensure D.L.J.'s safety while she was at Meagan's. Clyde Hanks, D.L.J.'s family therapist, testified he saw D.L.J. because some "incest" had occurred with appellant. Hanks testified D.L.J. was apprehensive about talking about what had happened and her mother told her they could go to Dairy Queen after she told Hanks about the offense. Noemi Mendez testified she is a CPS investigator and received a referral regarding D.L.J. After an investigation, she classified the case as "reason to believe" that an offense occurred. On cross-examination, Mendez acknowledged that children can be easily led which can lead to false charges of abuse. Mendez has received training in interviewing techniques to prevent that from happening. She said it would be improper to begin an interview by telling a child about the interviewer's own childhood sexual experiences. It would also be improper to interview a child by asking them what they had already told someone else. Detective Sabra Garibay testified she was assigned to investigate the case against appellant. Garibay testified that she had received a report that D.L.J.'s "babysitter" forced her to have oral sex with him. D.L.J. was able to give Garibay a detailed account of the offense, the name the perpetrator, and a general time period. The general time period was the summer of 1999. However, Garibay also understood the offense occurred on the "anniversary date" of D.L.J.'s parents, which would have been in April. The defense called appellant's ex-girlfriend, Stacie Lynn Mahan. Mahan testified she dated appellant for three years, including the period from June 1999 until August 1999. In August 1999, she and appellant were in Ohio visiting her family. They were in Ohio from August 15, 1999 until September 3, 1999. Appellant next called Kimberly Reese. Reese testified she lived next door to appellant and his family for thirteen years. She testified she has a daughter, Meagan, that is friends with D.L.J. After the offense occurred, D.L.J. continued to go to Meagan's house even though appellant lived next door. Reese said D.L.J.'s mother never called to warn her to keep D.L.J. away from appellant. Appellant testified and denied committing the offense. He said he was in Ohio with his girlfriend's family the second half of August 1999. However, he acknowledged being at D.L.J.'s house at various times in the summer of 1999. Dennis Michael Holly testified as a character witness for appellant. Holly testified he works as a supervisor for the electronics squad for the FBI in Dallas. Holly has known appellant for fifteen years. According to Holly, appellant's reputation in the community for being truthful and law abiding is very good. After hearing the evidence, the jury found appellant guilty of aggravated sexual assault of a child. This appeal followed. Motion to Quash
In the first issue, appellant contends the trial court erred in denying his motion to quash the indictment because the indictment did not give fair notice with respect to the date of the offense. The indictment alleged the offense occurred "on or about" August 30, 1999, but evidence at trial showed the offense could have occurred any time in the Spring or Summer of 1999. Appellant acknowledges that the State is not bound by the date alleged in the indictment and is required to prove only that the offense occurred before the indictment was returned and within limitations, both of which the State did in this case. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). Nevertheless, appellant maintains he was not given fair notice because he presented an "alibi" showing he was in Ohio on the specific date alleged in the indictment. He maintains if he had been given more dates in which the offense might have occurred, he may have provided similar alibis. In Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App. 1998), the Texas Court of Criminal Appeals held that an indictment need not specify the date in which a charged offense occurred or even "narrow the window" of time within which it must have occurred. In the rare case an indictment alleging an "on or about date" causes unfair surprise, the defendant's remedy is to ask for a postponement to meet the charge as presented at trial. Id. at 686. In this case, the "on or about date" alleged in the indictment was adequate to give appellant notice. See Garcia, 981 S.W.2d 685-86. Appellant did not request a postponement and therefore cannot now complain of unfair surprise. See id. Therefore, we resolve the first issue against appellant. Exclusion of Evidence
In the second issue, appellant asserts the trial court erred in excluding exculpatory evidence. During guilt-innocence, appellant attempted to present evidence concerning words D.L.J.'s brother Michael used when referring to oral sex. He asserts that because Michael used the same phrase when referring to oral sex as the perpetrator did, the excluded evidence tended to show either that (1) D.L.J. learned the phrase from her brother, or (2) Michael was in fact the perpetrator. The specific evidence appellant sought to present was evidence that eight to ten years earlier, Michael (who was then about seventeen to nineteen years old) often mentioned oral sex to two teenage girls (appellant's sister and "foster" sister). For example, Michael would joke to both girls about oral sex and, in doing so, would tell them "don't bite down." Neither girl ever engaged in oral sex with Michael. The question presented in this issue is whether the trial court erred in concluding the proffered evidence was not relevant. Relevant evidence means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Tex. R. Evid. 401. Irrelevant evidence is not admissible. See Tex. R. Evid. 402. We review a trial court's decision admitting or excluding evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Where the trial court's evidentiary ruling is within the "zone of reasonable disagreement," there is no abuse of discretion and the reviewing court will uphold the trial court's ruling. Id. According to appellant, evidence that Michael used the words "don't bite down" in reference to oral sex showed Michael was the perpetrator because D.L.J. said the perpetrator told her not to bite during the offense. We disagree. We begin by noting D.L.J. did not identify appellant as the perpetrator because of any words he used, but because she knew him. Moreover, D.L.J. did not testify to any specific phrase appellant used. Rather, she testified appellant kept telling her "not to bite, use [her] teeth, or anything like that." Later, on cross-examination, D.L.J. testified appellant said "something like" don't bite. The excluded evidence showed Michael used the phrase, "don't bite down," eight to ten years early to two teenage girls not much younger than he, and with whom he never engaged in oral sex. We cannot agree the fairly generic phrase used by Michael, years earlier, and under different circumstances, had any tendency to show Michael was the real perpetrator. Next, appellant asserts the evidence was relevant to show how D.L.J. could have learned the phrase "don't bite" in reference to oral sex. However, the evidence showed Michael used this phrase when D.L.J. was a toddler and there was no evidence Michael continued to use this phrase or ever used it in his young sister's presence. Thus, the trial court did not abuse its discretion in determining the evidence was not relevant to show how D.L.J. learned the phrase. We resolve the second issue against appellant. Factual Sufficiency
In the third issue, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. D.L.J. testified clearly and unequivocally that appellant committed the offense as alleged. To show the evidence is factually insufficient, appellant makes two arguments. First, that D.L.J. fabricated the allegations entirely and, second, that if D.L.J. was sexually assaulted, her brother Michael was the perpetrator. To show the allegations were fabricated entirely, appellant first directs us to evidence that D.L.J. delayed in making allegations against appellant. He also directs us to some collateral inconsistencies in D.L.J.'s testimony and the State's evidence. For example, the evidence pertaining to the date of the offense and whether D.L.J. was promised ice cream in exchange for accusing appellant of the offense. Appellant also asserts D.L.J. lacked credibility because when she first made an outcry, she did so in response to improper questioning by her mother. Appellant also contends the evidence showed D.L.J.'s brother, Michael was the person that committed the offense. He directs us to evidence the complainant's mother waited a month before taking her daughter to a therapist, which he asserts would be more likely if her son was the actual perpetrator. Other evidence appellant maintains shows Michael was the perpetrator is evidence that (1) the family therapist characterized the offense as involving incest (although the therapist also indicated D.L.J. named appellant as the perpetrator) and (2) the police investigator indicated D.L.J. was assaulted by her "babysitter" and Michael, not appellant, was D.L.J.'s babysitter. Appellant also asserts D.L.J. and her mother lack credibility because D.L.J. continued to visit her friend that lived next door to appellant after the offense and because D.L.J's mother testified that she warned the friend's mother about appellant but the friend's mother denied any such warnings were issued. Finally, he relies on his own testimony denying commission of the offense and the testimony of his character witness that he had a good reputation for being law abiding and telling the truth. After reviewing the record in its entirety, we conclude appellant has not directed us to a sufficient basis to second guess the jury's determination regarding the credibility of the witnesses. Nor can we agree there is any compelling, or even significant, evidence that Michael may have committed the offense. Therefore, we cannot conclude: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. We resolve the third issue against appellant. In his fourth issue, appellant argues for the "abrogation" of the current factual sufficiency standard of review in favor of a less demanding standard. The factual sufficiency standard of review was established by the Texas Court of Criminal Appeals in Clewis v. State, 922 S.W.2d at 129. This Court does not have the authority to abrogate a standard of review handed down by the Texas Court of Criminal Appeals. We resolve the fourth issue against appellant. Sealed Records
In the fifth issue, appellant requests we review sealed records from the Texas Department of Protective and Regulatory Services (TDPRS). Prior to trial, the trial court reviewed in camera TDPRS records to determine if they contained any evidence favorable to appellant. See Pennsylvania v. Ritchie, 480 U.S. 39, 62 (1987). After concluding they did not, the trial court denied appellant's request to review the records and sealed them for our review. In this issue, appellant requests that we independently review the records to determine whether they contain any exculpatory, mitigating, or impeachment evidence. See id; Dixon v. State, 923 S.W.2d 161, 167 (Tex.App.-Fort Worth 1996), judgm't vacated on other grounds, 928 S.W.3d 564 (Tex.Crim.App. 1996). We have done so and conclude they do not contain any such evidence. Therefore, we resolve the fifth issue against appellant.