Ricky Morrison v. State ( 2010 )

NO. 07-07-0401-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 18, 2010
_____________________________
RICKY MORRISON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_____________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,356; HONORABLE CECIL G. PURYEAR, JUDGE
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Ricky Morrison appeals his conviction of the offense of aggravated
sexual assault and the resulting sentence of fifty years confinement in the Institutional
Division of the Texas Department of Criminal Justice. By two points of error, appellant
contends the evidence presented was factually insufficient to support his conviction and
the trial court erred by admitting his recorded statement to police into evidence. We
affirm.
Background
Via an August 2007 indictment, appellant was charged with three counts of
aggravated assault, including one count of aggravated sexual assault.1 The State
proceeded to trial on this count alone. The indictment also included an enhancement
paragraph setting forth appellant’s prior felony conviction for aggravated kidnapping.2
Following appellant’s plea of not guilty, the case was tried to a jury.
At trial, the State presented evidence to show that on March 29, 2007, Theresa
Freda was violently and sexually assaulted by appellant after he offered her a ride home
from a party. At the close of the evidence, the jury found appellant guilty of aggravated
sexual assault as charged in the indictment and assessed punishment as noted.
Appellant timely appealed his conviction and sentence.
Analysis
Factual Sufficiency
A factual sufficiency review of the evidence is “barely distinguishable” from the
legal sufficiency review under Jackson v. Virginia.3 Marshall v. State, 210 S.W.3d 618,
625 (Tex.Crim.App. 2006). On direct appeal a court must begin its factual sufficiency
review with the assumption that the evidence is legally sufficient. Watson v. State, 204
S.W.3d 404, 406 (Tex.Crim.App. 2006). A factual sufficiency review considers whether
1
See Tex. Penal Code Ann. § 22.021 (Vernon 2007).
2
Appellant’s conviction was thus enhanceable pursuant to Penal Code § 12.42.
See Tex. Penal Code Ann. § 12.42 (Vernon 2007). During the punishment phase of
trial, appellant plead true to this enhancement.
3
Jackson v. Virginia, 433 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
2
the evidence supporting guilt, though legally sufficient, is so weak that the jury’s verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such
that the jury’s verdict is against the great weight and preponderance of the evidence.
Watson, 204 S.W.3d at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.
2000). Performing such a review, we consider all the evidence, in a neutral light.
Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.
As pertinent here, to secure a conviction for aggravated sexual assault, the State
must prove beyond a reasonable doubt the defendant intentionally or knowingly caused
penetration of the sexual organ of another by any means, without that person’s consent;
and by acts or words occurring in the presence of the victim threatened to cause or
placed the victim in fear of death, serious bodily injury, or kidnapping. Tex. Penal Code
Ann. § 22.021(a)(1)(A)(i), (a)(2)(A)(iii) (Vernon 2007).
The events leading to appellant’s prosecution occurred in the early morning
hours. Freda, a 40-year-old, testified she left a party where she had taken drugs and
drunk beer. When she was unable to contact her husband, she decided to walk home.
Appellant, whom she knew from “smoking crack,” drove past in his white pickup. He
offered Freda a ride home and she accepted.
Freda testified that on the way, appellant told her he needed to stop at his house.
Freda went into appellant’s house for a drink of water. While there, appellant pulled
Freda into a “vice grip” and Freda told him to “quit it.” When appellant disregarded her
request that he release her and instead pulled her closer, Freda became scared and
began struggling. As appellant attempted to drag Freda into the bedroom, she latched
3
onto the door frame but appellant managed to pull her into the bedroom and shut the
door. He grabbed a knife and shoved it into the doorjamb. Appellant ordered Freda to
take her clothes off and she complied because she was scared, in part because of
appellant’s access to the knife. Appellant started to take his own clothes off and
ordered Freda onto the bed.
Appellant got on top of Freda, but she fought “vehemently” to keep him from
raping her. She said that during their struggle appellant inserted his finger into her
vagina. On re-direct, Freda testified that she told hospital personnel that appellant
“shoved his finger inside of me.” Freda testified that she “snapped” when this happened
and became “like a wild animal,” trying to get out of there and “grabbing wherever [she]
could.” Appellant finally stopped and told Freda to get dressed. While she was
dressing, she heard appellant mumbling about not going back to prison and saying that
he would “kill [Freda] first”. Freda was terrified she would not survive the situation.
Despite appellant’s warning not to run as they left the house, Freda took the
opportunity to attempt escape as appellant got into his truck. She said she reached a
neighbor’s house but was able to knock only once on the door before appellant grabbed
her wrist. Appellant told her she was going to die and he “was going to die right along
with [her].” Freda ran to a car parked in front of the neighbor’s house and held on while
appellant continued to try to grab her and move her. Appellant pulled at her shirt,
eventually pulling her shirt and bra off. When appellant hit Freda, causing bleeding, she
screamed. Freda then heard appellant’s knife “click” and she screamed three more
times. She assumed a fetal position while appellant cut the left side of her face and
eye. Two neighbors heard and saw the commotion and called police.
4
Officer Eric Sturgeon testified he answered the domestic disturbance call. When
he arrived, he spoke with Pauline Escamilla, a neighbor of appellant. Sturgeon testified
that Escamilla was upset and told him she woke up when she heard a scream. She
went outside and down the street and saw a male kicking and hitting a female lying on
the ground. Escamilla yelled at the male and he ran off. Freda told Escamilla that the
person kicking and hitting her was appellant. Escamilla took Freda into her house,
where Sturgeon saw Freda lying on the kitchen floor. She did not appear to have a shirt
on, but was covered with a blanket on top and was wearing jeans. Freda had blood
covering her face and hair and there was blood around her head and on the kitchen
floor. Freda was crying and told the officer that appellant had attempted to sexually
assault her but she fought him off.
As Sturgeon walked toward appellant’s house, he saw pools of blood on the
street. A second officer, Rosa Cox, testified to the pools of blood and opined that it
appeared someone had been dragged. She noted blood in the mud as well.
Photographs in evidence depict Officer Cox’s descriptions and observations. She
testified she did not find any clothing on the street.
Officer Matthew Martinez testified he spoke with Freda at the hospital. Her
statement to the officer was generally consistent with her testimony at trial. Officer
Martinez observed that Freda appeared to have been involved in a struggle and agreed
that her statement was consistent with the injuries he observed. The jury saw
photographs also depicting Martinez’s descriptions and observations.
5
Appellant’s two neighbors also testified to observations generally consistent with
Freda’s version of the events outside appellant’s house. Joe Gutierrez testified he had
known appellant for over twenty years. He further testified his mother-in-law woke him
up at about 2:30 on that morning because she heard a woman screaming in the street.
Gutierrez also heard a scream and stated it “just scared the hell out of [him].” He called
911, telling the operator there was a woman outside, screaming, and that he thought
someone was getting hurt.4 After he made his 911 call, Gutierrez went outside and saw
two shadows in the street. He said he saw a female on the ground and a male figure
standing over her, straddling her. Gutierrez shortly heard Pauline Escamilla call out to
the people in the street. The male figure stood up and Gutierrez recognized him as
appellant. A minute later, Gutierrez saw appellant’s truck drive away. He was not sure
if appellant was driving it.
Pauline Escamilla testified she and appellant had been neighbors since 1993.
She said that at about 2:30 a.m., she heard “a horrible pain scream” coming from a
woman. She heard voices and recognized appellant’s voice. Escamilla saw a man she
immediately recognized as appellant, hitting a woman.5 She screamed at appellant,
calling him a name and telling him to “leave that girl alone.” Escamilla testified that
4
A record of his 911 call was played for the jury.
5
Officer Sturgeon’s report said “P. Escamilla could not identify R. Morrison by
sight due to the dark street.” On cross-examination, Escamilla testified she did not tell
the officer she could not identify appellant by sight that night because it was dark.
6
appellant immediately took off and got in his truck. She then clarified that she did not
see appellant get in the truck but saw his truck driving away.6
Escamilla testified she took Freda into her house. She said Freda “was totally
bleeding from the top of her head to her waist” and she was naked from the waist up.
She said Freda was hysterical and appeared to be in a lot of pain. Escamilla also called
911. She testified that Freda told her that appellant was beating her up.
Detective Tracy Taylor testified he took Freda’s written statement when she
came to the police department the next day. The statement was largely consistent with
the injuries the detective observed on Freda. Freda clearly identified appellant as her
attacker.
Terry Curtis, a friend of appellant’s, testified for appellant. He said he was at
appellant’s house with appellant and Freda. He testified that Freda was mad at
appellant because he refused to take her where she wanted to go so she left the house
with two men. Curtis testified that he was at appellant’s house until 1:00 that morning
and did not see appellant hit Freda.
Appellant gave police a recorded oral statement, which was played at trial over
his objection. In the statement, appellant maintained that he did not assault Freda in
any way. He said she left his home and just walked away. He did not see her again
that night. If neighbors identified him as Freda’s attacker, they were “lying.”
6
Appellant was later arrested in a white pickup truck matching the description
given by Freda and appellant’s neighbors.
7
In his argument on appeal, appellant acknowledges the probative value of the
testimony of his neighbors who identified him as the person they saw assaulting Freda.
Appellant further acknowledges a conviction for sexual assault may be affirmed solely
on the testimony of the victim, despite the absence of any medical evidence. Appellant
nonetheless argues the evidence that he penetrated Freda as the indictment alleged is
so weak as to be factually insufficient. In support of his argument, appellant points to a
complete absence of medical evidence of penetration, together with evidence Freda
failed to make her outcry at the earliest opportunity, told officers and hospital personnel
nothing about the digital penetration, and turned down a sexual assault exam.7
Although the officer’s reports state Freda complained of an attempted sexual
assault, the reports do not mention the digital penetration. In fact, Martinez testified
Freda told him no penetration was made.8 His report stated “No penetration occurred
whatsoever.”
As noted, a conviction for indecency or sexual assault may be affirmed absent
any medical evidence and solely on the testimony of the victim. Rodriguez v. State, 819
S.W.2d 871, 873-74 (Tex.Crim.App. 1991); Tinker v. State, 148 S.W.3d 666, 669-70
(Tex.App.–Houston [14th Dist.] 2004, no pet.), citing Garcia v. State, 563 S.W.2d 925,
928 (Tex.Crim.App. 1978); Bottenfield v. State, 77 S.W.3d 349, 356 (Tex.App.–Fort
Worth 2002, pet. ref’d). The jury had an ample opportunity to evaluate Freda’s
7
At trial, Freda acknowledged she refused a rape examination at the hospital,
telling the jury she did not think it would help. However, as noted, she testified that she
told both hospital personnel and police that appellant “shoved his finger inside of [her].”
8
Some testimony suggests the officer was intending to refer to penile penetration
when he talked to Freda.
8
credibility. Although our authority to review the factual sufficiency of the evidence
permits us to disagree with the jury’s determinations, even to a limited degree those
concerning the weight and credibility of the evidence, we must accord them due
deference. Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 9. Despite Freda’s
somewhat inconsistent prior statements and her admittedly impeachable background,
the jury did not act in an irrational manner by choosing to accept her testimony she was
digitally penetrated. See Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008)
(ultimate question in factual sufficiency review is whether jury was rationally justified in
finding guilt beyond reasonable doubt); Marc v. State, 166 S.W.3d 767, 772 (Tex.App.–
Fort Worth 2005, pet. ref’d) (finding jury could have chosen to believe victim despite her
history as drug user, prostitute and felon). See also Goodman v. State, 66 S.W.3d 283,
286 (Tex.Crim.App. 2001) (explaining jury’s entitlement to believe Cretan Liar with five
prior perjury convictions).
Further, we note that the State presented a convincing case appellant was the
man who assaulted Freda in the street outside his home. The jury heard no evidence
from which it could discern a motive or reason for such an attack other than that
presented by Freda’s testimony. We do not see an objective basis on which to find that
the great weight and preponderance of all the evidence contradicts the jury’s verdict.
We find the evidence factually sufficient to support appellant’s conviction and overrule
his first point of error.
Appellant’s Statement
In appellant’s second point of error, he argues the trial court erred under article
38.22, § 3(a)(5) of the Code of Criminal Procedure in overruling his objection to the
9
introduction of his recorded statement into evidence, thus affecting his substantial
rights. Article 38.22 of the Code of Criminal Procedure governs the admissibility of
statements of an accused made as a result of custodial interrogation. See Tex. Code
Crim. Proc. Ann. art. 38.22 (Vernon 2001). Section 3(a) provides, in relevant part, “No
oral or sign language statement of an accused made as a result of a custodial
interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual
recording, is made of the statement; . . . and (5) not later than the 20th day before the
date of the proceeding, the attorney representing the defendant is provided with a true,
complete, and accurate copy of all recordings of the defendant made under this article.”
Article 38.22, section 3(a) is to be strictly construed and courts may not interpret it as
making a statement admissible unless all requirements have been satisfied by the
State. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2001). Nonetheless,
an error of admission of a statement in violation of § 3(a)(5) is subject to a harm
analysis. See Sells v. State, 121 S.W.3d 748, 765 (Tex.Crim.App. 2003) (finding error
harmless).
During trial, when the State offered appellant’s recorded statement, appellant’s
counsel objected, informing the court he had not received the recording in the time
period provided in § (3)(a)(5). He said the State did not turn over the recording until
less than two weeks before trial. Without hearing a response from the State or further
comment, the trial court overruled the objection. The State appears to concede on
appeal that it failed to comply with § (3)(a)(5). On this state of the record, we will
assume the trial court erred by admitting the recorded statement, and proceed to
10
evaluate the harmfulness of the error. The focus of our harm analysis will be on the
harm flowing from the erroneous admission of appellant’s statement. Sells, 121 S.W.3d
at 765; Tigner v. State, 928 S.W.2d 540, 547-48 (Tex.Crim.App. 1996). Non-
constitutional error that does not affect substantial rights must be disregarded. Tex. R.
App. P. 44.2(b); Sells, 121 S.W.3d at 765, n.69. Thus, we will not reverse because of
the erroneous admission of the statement if, after examining the record as a whole, we
have a fair assurance that it did not influence the jury, or influenced them only slightly.
Gray v. State, 233 S.W.3d 295, 299 (Tex.Crim.App. 2007), citing Ford v. State, 73
S.W.3d 923, 925 (Tex.Crim.App. 2002).
As noted, in his recorded statement, appellant denied he assaulted Freda.
Instead, he said, they had an ongoing relationship and she would often call him to come
get her. According to appellant, on the night in question, Freda called him and he went
to get her. Later that night, she wanted to go to a “dope house” but appellant refused to
take her so she walked away from his house. He asserted the neighbors were lying if
they said they saw him in the street fighting with Freda. He also said Freda was lying if
she said he assaulted her.
Appellant contends the statement was devastating to his case because the jury
was likely to find incredible his recorded assertions that his neighbors were lying.9 As
between him and Freda, he argues, his recorded statement caused the jury to brand
him as “the liar.” He points to the harm analysis in Tigner, in which the court concluded
that without the defendant’s incriminating statement, the State’s case was not
9
Appellant also points out the jury asked to hear appellant’s statement again
during their deliberations.
11
“overwhelming.” Tigner, 928 S.W.2d at 548. The same is true here, appellant contends,
because Freda’s testimony was subject to such heavy impeachment.
We disagree. In his advancement of his argument, appellant forgets his
beginning point: the credible testimony of his neighbors. Granted, in his statement
appellant did not merely say his neighbors were mistaken, he said they were lying,
which may well have damaged his credibility with the jury. But his neighbors’ testimony
was always going to be damaging to the theory appellant set out in his opening
statement and supported with Curtis’s testimony, that is, that Freda was at his house
but left and was attacked by someone else. If the jury believed the neighbors’
identification of him as the attacker, it was always going to reject appellant’s theory,
regardless of who testified to it.
The State argues admission of appellant’s statement was harmless because it
supported his theory that Freda was attacked by someone else,10 and because
appellant was able to use it as a substitute for testifying at trial, avoiding cross-
examination and impeachment.11 The State’s argument provides an additional reason
supporting our conclusion the error does not require reversal. See Castaneda v. State,
852 S.W.2d 291, 294 (Tex.App.–San Antonio 1993, no pet.) (finding error in admitting
10
Indeed, from the State’s fulsome description of the benefits appellant derived
from admission of his recorded statement, one might wonder why the State offered it.
11
During voir dire, appellant’s counsel told the jury appellant would testify, but
appellant decided against taking the stand. During his closing, appellant’s counsel
referred to the recorded statement, stating “Now, I told you during voir dire that Ricky
would come and testify. And then we decided, ‘why waste your time?’ But you actually
did hear from Ricky. Detective Taylor took his statement. He didn’t hide behind the 5th
Amendment. He told you he didn’t do it. He was surprised he got arrested.” The State
also made brief reference to the content of the recorded statement in closing argument.
12
defendant’s tape-recorded statement harmless because, if believed, statement would
have bolstered theories of self-defense and defense of third parties).
Having examined the record as a whole, we find fair assurance the erroneous
admission of appellant’s statement did not influence the jury’s guilty verdict more than
slightly. We overrule appellant’s second point of error, and affirm the trial court’s
judgment.
James T. Campbell
Justice
Do not publish.
13