Weatherby v. State ( 2001 )

OPINION

LIVINGSTON, Justice.

INTRODUCTION

Nick Eugene Weatherby was charged with aggravated sexual assault of a child under fourteen years of age and the lesser offense of indecency with a child by contact. The offenses were enhanced by a prior conviction for burglary. The jury found him guilty of aggravated sexual assault, the enhancement allegation “true,” and assessed punishment at life imprisonment. We affirm the trial court’s judgment.

BACKGROUND

In December 1998, appellant’s three children were living in the Pythian Home, a home for children of struggling families, in Weatherford, Texas. In late December, the children spent two weeks away from the home visiting their parents. During the two weeks, the children and their parents stayed at three different shelters in Fort Worth. When the children returned to the Pythian Home, appellant’s eleven-year-old daughter reported that her father sexually abused her.

Appellant was charged with aggravated sexual assault of a child under fourteen years of age and indecency with a child by contact. The victim testified that her father attempted to fully penetrate her sexual organ -with his penis on two occasions during the vacation, and on Christmas Eve, the third incident, he succeeded. The victim’s testimony was partially corroborated by Evalyn Fox, the employee of the Pythian Home to whom the victim reported the abuse. Ms. Fox testified that the victim told her that appellant “had fondled and kissed and licked on her breast area and also in her private area,” but that she gathered from the victim that appellant did not insert his penis into her vagina during any of the incidents.

The indictment set forth two counts. The first count alleged, on or about December 24,1998, aggravated sexual assault of S.W. by contact of her sexual organ to the mouth or sexual organ of appellant. The second count alleged indecency with a child by contact of her breast or genitals. The jury charge, however, submitted the offense of indecency with a child by contact as a lesser included offense of aggravated sexual assault, as opposed to two separate counts. Appellant moved to quash the entire indictment for failing to give him proper notice of the alleged offenses, but the trial court denied the request. Appellant’s motion to quash the indictment claimed the indictment failed to give him proper notice due to its allegation that the offense occurred “on or about the 24th of December 1998.” The motion also claimed the “on or about” language prevented him from determining whether the grand jury had indicted for the allegation in the indictment or for some “extraneous offense.” He also claimed that the “on or about” language was so vague it would prevent him from determining which offense appellant was either convicted or acquitted of in order to plead a double jeopardy bar to a subsequent prosecution. The jury found appellant guilty of the greater offense of aggravated sexual assault and found the enhancement allegation to be “true.” The jury gave appellant the maximum sentence of life imprisonment, but no fine.

DISCUSSION

Motion to Quash the Indictment

In appellant’s first point, he argues that the trial court should have quashed the indictment because it did not specifically allege the incident that he was going to be tried for. Appellant asserts that the indictment did not specify the acts constituting the alleged offenses, and thus there was no way of knowing whether the grand jury indicted him on the same facts presented to the petit jury at trial.

“[A]n indictment must ‘allege on its face the facts necessary (1) to show that the offense was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the defendant notice of precisely what he is charged with.’ ” State v. Edmond, 933 S.W.2d 120, 131 (Tex.Crim.App.1996) (Baird, J. concurring and dissenting) (quoting Terry v. State, 471 S.W.2d 848, 852 (Tex.Crim.App.1971)). An indictment or information normally provides sufficient notice if it tracks the language of the statute. Olurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App.1994). We review a trial court’s denial of a motion to quash an indictment for an abuse of discretion. State v. Goldsberry, 14 S.W.3d 770, 772 (Tex.App.—Houston [1st Dist.] 2000, pet. refd) (citing Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh’g)).

Here, both counts of the indictment tracked the language of the respective statutes. See Tex. Penal Code Ann. §§ 21.11(a)(1), (2), 22.011(a)(2)(C) (Vernon Supp.2001). Pretrial, appellant’s counsel focused on the lack of specificity of the indictment in his motion to quash. He argued that because there were so many allegations of sexual assault with this victim there would be no way to know which offense was primary and whether the grand jury indicted on that offense. At that point, the State elected a primary offense, the third sexual assault. The court specifically asked the prosecutor whether that was the offense presented to the grand jury and the prosecutor responded that there was no evidence to the contrary. The trial court then overruled appellant’s motion to quash because there was no evidence suggesting that the primary offense to be tried was not presented to the grand jury. Because we conclude there is no evidence to show that the offenses presented to the grand jury differed from the offenses proved at trial, the trial court did not abuse its discretion. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). We overrule appellant’s first point.

Jury Charge

In appellant’s second point, he complains that the trial court erred by refusing to include separate counts in the jury charge for the two offenses charged by the indictment. He argues that “[b]y submitting the case to the jury as a single offense, the deliberations could have been poised to find [him] guilty of the primary, more serious, and more punishing offense.” Appellant objected to the jury charge and requested that because he had been indicted on two charges the jury should have been charged on both. In other words, appellant objected to count two being submitted as a lesser included offense. The court overruled his objection stating that to charge him with two separate offenses would violate double jeopardy since they arose out of the same conduct.

Here, the trial court instructed the jury that indecency with a child is a lesser included offense of aggravated sexual assault.¹ The indictment alleged that both offenses occurred on or about December 24, 1998. The State explained to the trial court that there was a series of sexual assaults that occurred during the Christmas vacation, but that it was focusing on the third one at trial. The record shows extraneous offenses were mentioned during trial, but that the Christmas Eve incident where appellant fully penetrated his daughter was the act forming the basis for both offenses in the indictment. Because the allegations of aggravated sexual assault and indecency with a child arose from the same criminal transaction on or about December 24, 1998, it would have been erroneous for the trial court to grant appellant’s request to include separate counts for each offense in the jury charge. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App.1998) (holding that where one act is at issue the State should either elect between aggravated sexual assault and indecency with a child, or submit indecency with a child as a lesser included offense). Because the indictment alleged the indecency offense occurred “on or about” December 24, 1998, the State may well be prevented from trying appellant for any indecency offense against his daughter that occurred during the statute of limitations but before the date of the indictment. Sledge v. State 958 S.W.2d at 259 n. 4 (Mansfield, J., concurring); Mireles v. State, 901 S.W.2d 458, 461 (Tex.Crim.App.1995). This protects appellant from being placed in jeopardy twice for the same act while still allowing the jury to find appellant guilty of either the greater or the lesser included offense but not both. Furthermore, appellant benefitted from the single charge, because the jury could not convict him on both counts. The jury charge properly instructed the jury that they could convict appellant of only one of the two offenses. We overrule appellant’s second point.

Jury Argument

When the trial court sustains an objection to improper jury argument and instructs the jury to disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.—Fort Worth 1997, pet. ref d) (en banc op. on reh’g). Its resolution depends on whether the court’s instruction to disregard cured any prejudicial effect. Id. An instruction to disregard is presumed to cure the harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, — U.S. -, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). If the instruction cured any harm caused by the improper argument, a reviewing court should find that the trial court did not err; almost any improper argument may be cured by an instruction to disregard. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995); Faulkner, 940 S.W.2d at 312. It is presumed that the jury will follow a court’s instruction to disregard a comment. Wesbrook, 29 S.W.3d at 116. Only if the reviewing court determines that the instruction was ineffective does the court go on to determine whether the error was harmful. Tex. R.App. P. 44.2.

In appellant’s third point, he argues that the trial court erred by denying his motion for a mistrial because the State exceeded the scope of proper jury argument during the guilt-innocence phase. Specifically, appellant asserts that the State argued outside the record when it told the jury that the victim of the offense wanted the case dismissed. The trial court sustained appellant’s objection that the comment was outside the record, gave an instruction to the jury to disregard the comment, and denied appellant’s motion for a mistrial. The State contends that the argument was a reasonable deduction from the evidence.

Appellant argues that the comment was harmful because it implied that the allegations were true, that the victim was forgiving appellant in spite of what he had done to her, and that appellant was to blame for having the trial. We are not persuaded by appellant’s somewhat speculative argument and presume that the jury followed the trial court’s instruction to disregard the comment. Therefore, we hold the trial court did not err by denying his motion for mistrial. See Dinkins, 894 S.W.2d at 357. We overrule appellant’s third point.

In appellant’s fourth point, he complains that the trial court erred by denying his motion for a mistrial following improper jury argument by the State during the punishment phase of the trial. Appellant argues that the following argument was an improper comment on his constitutional right to a trial: “Do you think this was easy for her to talk about on the witness stand? Who put her through that? The [appellant] did. He did it by committing these acts against her and he did it by pleading not guilty.” Appellant objected to this argument. The trial court sustained the objection, instructed the jury to disregard the argument for any purpose, and overruled the appellant’s motion for mistrial. The State argues that the trial court did not err by denying the motion for a mistrial because the error was rendered harmless by the trial court’s instruction to the jury to disregard the comment.

An accused has a constitutional right to a trial. U.S. CONST, amends. VI, XIV. Therefore, it was improper for the State to argue that appellant compelled the victim to testify by sexually assaulting her and pleading “not guilty.” The trial court recognized that the argument was improper by sustaining appellant’s objection and instructing the jury to disregard the comment. Appellant cites one case, Taylor, regarding this point. Taylor v. State, 987 S.W.2d 597, 600 (Tex.App.—Texarkana 1999, pet. ref d). Taylor supports his argument that the comment was improper, but Taylor does not address what harm, if any, was caused by the comment. When considering the harm from a constitutional error, an appellate court must reverse on punishment unless it determines beyond a reasonable doubt that the error did not contribute to the punishment. See Tex.R.App. P. 44.2(a). While appellant argues that the error is constitutional, he fails to explain why the instruction to disregard was insufficient to cure the harm or how he was harmed under rule 44.2(a). See id. Further, the argument at issue occurred at the conclusion of the punishment phase of the trial. Appellant’s guilt or innocence, the object of the State’s comment about pleading “not guilty,” had already been determined. In light of the trial court’s prompt instruction to the jury to disregard the comment and appellant’s failure to rebut the presumption that the instruction cured the harm, we hold the trial court did not err by denying his motion for mistrial. See Dinkins, 894 S.W.2d at 357. We overrule appellant’s fourth point.

CONCLUSION

Having overruled all of appellant’s points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a concurring opinion.

1 . Indecency with a child can be a lesser included offense of aggravated sexual assault, but it depends on the wording of the indictment. Quinn v. State, 991 S.W.2d 52, 55 (Tex.App. — Fort Worth 1998, pets, refd) (op. on PDR). Appellant does not argue error on this basis.