Michael Patrick Anderson v. the State of Texas ( 2023 )

Motions for Rehearing and En Banc Reconsideration Denied as Moot;
Affirmed and Substitute Memorandum Opinion filed February 14, 2023.
In The
Fourteenth Court of Appeals
NO. 14-19-00958-CR
MICHAEL PATRICK ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1634095
SUBSTITUTE MEMORANDUM OPINION
We issued our original opinion in this case on January 19, 2023. Appellant
filed a motion for rehearing and a motion for en banc reconsideration. We deny both
motions as moot, withdraw our previous opinion, vacate our previous judgment, and
issue this substitute opinion and judgment.
Appellant Michael Patrick Anderson appeals his conviction for continuous
sexual assault of a child. See Tex. Penal Code Ann. § 21.02(b)(1). In seven issues,
appellant argues that the trial court erred by: (1) sustaining the State’s objection to
his inquiry into complainant’s sexual history; (2) allowing the State to impeach him
with his successfully completed deferred adjudication probation; (3) failing to
answer the jury’s note during jury deliberations; (4) denying his motion for new trial;
(5) sustaining the State’s objection to the testimony of appellant’s trial attorney
regarding jury misconduct; (6) quashing appellant’s juror subpoenas; and (7)
denying appellant the opportunity to make an offer of proof. We affirm.
I. BACKGROUND
Appellant met Suzette Snider Lee (“Lee”) when she was eighteen years old,
and he was twenty-one years old. In 2008, the two reconnected; at the time, appellant
was going through a divorce and Lee’s husband had recently “abandoned” her. Lee
soon moved into appellant’s apartment with her three children. Around 2011, Lee,
her children, and appellant moved into Lee’s sister’s two-bedroom apartment in
Katy, Harris County, Texas. At this time, Lee’s children—C.S., H.W., and C.W.—
were two, eight, and ten, respectively. The children stayed in one bedroom and Lee
and the appellant in the other. Lee’s usual work hours at David’s Bridal during this
time were from 10:00 AM to 6:00 PM. Appellant was usually out of the apartment
for work from 5:30 AM to 7:00 PM. There were a few times when the appellant
would return home from work before Lee did. The apartment lease had 4-6 months
remaining when they moved in. When the lease expired, appellant, Lee, and her
children moved into a mobile home owned by Lee’s parents in Goodrich, Polk
County, Texas. While living in Goodrich, the appellant and Lee got into a fight about
Lee’s alleged affair and appellant’s alcohol consumption. During this fight, Lee
asked appellant to move out, which he did, and the pair broke up.
About six years later, in 2017, Lee took her then thirteen-year-old daughter,
H.W., to the doctor because she was experiencing abdominal pain and gynecological
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issues. H.W. was also having trouble sleeping and was experiencing heavy menstrual
cycles, passing heavy blood clots. While at the doctor’s office, H.W. began crying
and was very upset and told her mother that appellant had “touched her” “many
times” while they lived in the mobile home in Goodrich. H.W. said she could not
remember where everybody was during the occurrences but that it only started
happening to her when they moved to Goodrich. H.W. told Lee that appellant
removed her clothes and penetrated her with his penis.
When H.W. and Lee arrived home from the doctor’s visit, Lee waited for C.W.
to return home from school to ask her if C.W. had the same experiences. When C.W.
arrived, she found H.W. crying with Lee. Lee told C.W. what happened to H.W.,
and Lee asked C.W. if anything had happened to her. C.W. replied that while they
were living in the Katy apartment, appellant had gotten into her bed, laid behind her,
spread open her legs, and put his hands in her vaginal area. C.W. also said that her
clothes remained on, but that appellant moved her underwear to the side. C.W. stated
that the incident had only happened once. Within days, Lee reported her daughters’
claims to the police. At one point, Lee told the police that the molestation occurred
“every night” when she went to work. Lee later explained that she knew that was not
true but that is how she felt after hearing her daughters’ recollection of the
occurrences.
After Lee reported her daughters’ claims to the police, Deputy Linder
(“Linder”), a Harris County child abuse investigator, was referred the case from a
patrol deputy. Linder investigated the case involving C.W. because it occurred in
Harris County, which is within Linder’s jurisdiction. Linder did not investigate
H.W.’s case because it occurred in Polk County. After Linder’s investigation, the
Harris County District Attorney’s office accepted one charge of indecency with a
child against appellant.
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Appellant was charged by indictment with continuous sexual assault of a
child. The indictment alleged that during a period of time of thirty days or more,
appellant committed two acts of sexual abuse against a child younger than fourteen
years of age: an act constituting indecency with a child by contact against C.W. in
April 2011 and an act constituting aggravated sexual assault of a child against H.W.
in January 2012. Appellant pleaded not guilty and exercised his right to a jury trial.
A. State’s Witnesses
1. C.W.
At trial, C.W. testified that while living in the apartment in Katy there was a
single occasion when she was lying on the bed in the main bedroom watching
television and appellant began “spooning” her and rubbing her vagina with his hand.
When this happened, C.W. did not like it, so she got up and left the room. C.W.
stated that she did not like appellant because he was mean and used to hit her little
brother on his head with his ring. She recalled one incident when the appellant hit
her brother with a pot and threw a beer at her mother. When appellant’s counsel
asked C.W. if Lee “wanted [appellant] put in jail,” C.W. responded “Yes.”
2. H.W.
H.W. testified at trial that while living in Goodrich, appellant came into the
room she was coloring in, removed her pants, got behind her and rubbed his penis
on her for “a little bit,” then left. He did this several times on different occasions.
Another time, while Lee was at work, H.W. was watching TV in her mom’s bedroom
when appellant came in, closed the door, and “put something underneath” the door.
Appellant retrieved a clear liquid out of the dresser and put it on his penis, took off
H.W.’s pants, and put his penis inside of her vagina. When it started hurting, H.W.
got up and left the room. Appellant told her he was sorry and begged her to come
back. H.W. stated she did not tell anyone because she was scared; H.W. was afraid
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that appellant would hurt her and/or “abuse [her] little brother.” H.W. testified that
appellant molested her in this way more than five times while living in Goodrich.
She claimed to have never seen his penis during any of these occurrences. H.W. also
did not like appellant because he hurt her little brother often. H.W. explained that
she revealed the abuse to her mother at the doctor’s office because she thought it
might be related to her heavy periods. H.W. stated that she was afraid of appellant
because of the way he disciplined her brother.
3. Suzette Lee
Lee testified that while living with appellant, he had exhibited violence
towards herself and her son, C.S. Appellant wore a metal ring made from a motor
piston and would hit C.S. on the head with his hand. C.W. and H.W. both witnessed
this. Appellant also punched through the sheetrock in the laundry room on one
occasion. There was another occasion when appellant threw a full beer can at Lee.
Appellant attempted to ask Lee if she knew of or had been informed by H.W.’s
doctor that H.W. was sexually active. The State objected to this question, arguing
that the question was within the realm of Rule 412 of the Texas Rules of Evidence.
The trial court sustained the objection. See Tex. R. Evid. 412(a) (providing that
reputation or opinion evidence of a victim’s past sexual behavior or specific
instances of a victim’s past sexual behavior are not admissible in a prosecution for
sexual assault, aggravated sexual assault, or attempt to commit sexual assault or
aggravated sexual assault).
4. Patti Schofield, SANE Nurse
Patti Schofield, a certified Sexual Assault Nurse Examiner (“SANE”),
testified that on the physical examination, H.W. had a hymenal transection greater
than 50 percent, which is highly suspicious and consistent with sexual abuse based
upon her own experience as well as the work of two top forensic pediatricians in the
State of Texas and the country, Joyce Adams and Nancy Kellogg. Schofield further
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testified that the outcry of sexual abuse, together with the findings of a transection
greater than 50 percent, enabled her to state there is a correlation with sexual abuse.
She admitted that the hymenal injury could have occurred within a year or even
within six months of the examination done six years after the alleged abuse. When
asked if her findings alone could be consistent with H.W. “not having sexual abuse,”
Schofield answered in the negative. Appellant asked Schofield whether she asked
C.W. and H.W. about their sexual activity. The State objected to this question under
Rule 412 of the Texas Rules of Evidence, and the trial court sustained the objection.
See id.
5. Jamie Haynes, Forensic Interviewer
Jamie Haynes, a forensic interviewer, testified that he interviewed C.W. and
H.W. on the same day. According to Haynes, they both cried during the interviews
and they both described instances of sexual abuse. On cross-examination, Haynes
testified about the reason C.W. was crying during her interview:
[Appellant’s counsel]: But isn’t it true that [C.W.] was crying about
her brother, not the [sexual] abuse?
[Haynes]: Yes.
[Appellant’s counsel]: So, she was not crying about the abuse when
she was talking to you and explaining what
happened?
[Haynes]: That’s correct.
[Appellant’s counsel]: Is that correct?
[Haynes]: Yes.
[Appellant’s counsel]: Okay. She only started crying when she
started talking about her brother?
[Haynes]: Yes.
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...
[Appellant’s counsel]: So, when [C.W.] was talking about the abuse
. . . she was not emotional when she was
telling—explaining to you what happened,
right?
[Hayes]: She began crying when she was talking about
her concerns of what happened to her brother.
After appellant’s counsel further questioned Haynes about the interviews Haynes
conducted with C.W. and H.W., the State approached the bench and argued that
appellant “opened the door for one of the motions in limine talking about previous
incidents of abuse against the brother.” According to the State, appellant misled the
jury, causing the jurors to believe C.W. was just crying about her brother, while she
was actually crying about her brother because she feared appellant, and was scared
to make any outcry statements against appellant. The trial court agreed with the State
that appellant had opened the door to evidence of appellant’s treatment of the
children and why the children feared appellant.
B. Appellant’s Witnesses
1. Michael Patrick Anderson
Appellant testified in his own defense. According to his testimony, he spent
his teen years into adulthood in Houston and was forced to drop out of high school
to support his family. Appellant denied ever touching either of the girls
inappropriately. He admitted to disciplining C.S. but claimed it was not to the extent
alleged by Lee, C.W., and H.W. While living in Katy, appellant fixed up Lee’s
grandparents’ trailer for two months before moving to Goodrich. Appellant claimed
that none of the children’s biological fathers came to visit them. He further testified
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that he felt betrayed by the girls’ allegations and that he tried to be good to Lee and
the children. Appellant claimed that he found out Lee was cheating on him, and the
couple broke up because of her cheating and appellant’s alcohol abuse.
His attorney asked him if he had “been doing a pattern of domestic violence”
and appellant responded “No.” On cross-examination, after the trial court stated that
appellant had opened the door on the issue of domestic violence, the State questioned
appellant concerning his arrest for assault of a family member in 2002, for which he
was placed on deferred adjudication. Without objection, appellant admitted that he
pleaded guilty to that charge. The trial court then granted appellant’s running
objection to questions concerning the 2002 arrest.
Appellant claimed to never have put a hand on Lee. He said that after the
breakup, he would see Lee and the children at family functions and C.W. and H.W.
were seen at a pool party interacting with appellant. Appellant claimed the girls were
not fearful of him.
2. Lourdes Bosquez, M.D.
Appellant called Lourdes Bosquez, M.D., to testify. Bosquez is a medical
doctor, psychiatrist, and forensic examiner with experience in child abuse cases.
Bosquez testified that there was no evidence of grooming in this case and that the
partially ruptured hymen of H.W. is inconsistent/non-conclusive regarding sexual
abuse. Bosquez claimed that the damaged hymen could have happened through
consensual sexual activity and that delayed sexual abuse outcries are rare. Bosquez
implied that there would be no reason for complainants’ delayed outcries because
the girls denied that appellant used any threats, intimidation, or force against them.
When C.W. and H.W. were asked “what were you told you were coming in here
[sic]?”, Bosquez noted that both girls said something along the lines of “to say as
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much as we could to put [appellant] in jail.” To Bosquez, this may have been a sign
of suggestibility, which she defined as “when someone asks you something and
repeats the question until you get to get an answer.”
3. Character Witnesses
The appellant then called several character witnesses to testify to appellant’s
reputation of honesty, good moral character, and safe conduct around children
John Zak, a co-worker and friend of appellant, testified that appellant is “very
respectful and courteous to people . . . [and] hard working . . . [and] truthful.” He
also asserted, “he’s very safe and I trust him with my children.”
Michael Leslie Fulgham, appellant’s son, affirmed his belief that appellant is
truthful in addition to having “good moral character and safe conduct around
children.”
Marianne Arceneaux, appellant’s fiancé, testified that appellant exhibits “safe
conduct with children.”
Appellant also called his ex-wife, Lavada Fulgham, to testify. Lavada stated
she had known appellant for about twenty-five years, that they were married in 2005,
and have a son. Lavada testified that the 2002 assault occurred prior to their
marriage, and that the situation improved when appellant followed the recovery
program. She testified regarding appellant’s reputation, stated appellant is truthful,
and “is a good-hearted man who will bend over backward to help anyone in need,
especially the elderly or young.” Lavada said she had seen appellant around children
on many occasions, and has good moral character and safe conduct around young
children, and despite the charge against appellant, maintains her opinion as to his
reputation. On cross-examination, Fulgham testified, without objection, that the
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2002 assault involved appellant tackling her to the ground causing pain in her
shoulder and leaving a mark on her left forearm.
Leslie Fulgham, one of appellant’s in-laws, testified that she has known
appellant for twenty-two years. She claimed that appellant is “extremely dependable,
honest, hard-working and you can count on him when you need somebody.” She
also asserted that he has “a good character for moral and safe conduct around young
children.”
Lavada Fulgham’s sister-in-law, Deborah Kay Fulgham, also testified
regarding appellant’s reputation for truthfulness, which she stated was “reliable in
that area,” and when asked on direct examination about appellant’s good character
for moral and safe conduct around young children, stated appellant was always
positive and engaging with children and looked out for the children. Deborah further
testified that she was aware of the 2002 assault charge, and that the counseling
appellant received afterward had “absolutely” helped him.
C. Jury Note
During deliberations the jury sent a note to the trial court, which read: “Point
of clarity – Do we need to find action against both of the girls or simply just one to
find guilt in continuous charge?” When the trial court received this note, it answered,
“Please refer to the court’s charge and continue to deliberate.” The jury found
appellant guilty as charged, and the court sentenced him to sixty years’ confinement
in the Texas Department of Criminal Justice.
D. Motion for New Trial
Following the verdict, William Perkins (“Perkins”), appellant’s co-counsel,
spoke to three jurors. According to Perkins, the jurors allegedly did not deliberate
on the charge involving C.W. and rendered a verdict only with regard to H.W. He
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further claimed that the jury refused to deliberate on the allegation involving C.W.
because they did not feel it necessary, and that the jury rejected the State’s theory of
multiple victims and sua sponte rendered a verdict based on a single victim theory
that occurred in Polk County.
Appellant timely appealed his conviction, and filed a motion for new trial,
advancing the following bases: insufficient evidence to sustain a verdict, improper
venue, court error in failing to answer the jury note, jury misconduct, and ineffective
counsel. Attached to the motion for new trial were affidavits from Perkins and three
of the jurors. At the hearing on the motion, the court quashed the subpoenas for the
jurors and refused to allow their testimony, and refused to allow Perkins to testify
regarding his conversations with the jurors. The trial court also denied appellant’s
motion for new trial.
Appellant asserts on appeal that the trial court abused its discretion (1) when
it sustained the State’s objection to appellant’s question regarding H.W.’s prior
consensual sexual activity pursuant to Texas Rule of Evidence 412, (2) when it
allowed the State to impeach appellant with evidence of appellant’s successfully
completed deferred adjudication probation, (3) when it overruled appellant’s motion
for a new trial, and (4) when it granted the State’s objection to the testimony of
appellant’s trial lawyer. Additionally, appellant claims he suffered egregious harm
when the trial court “failed to answer the jury’s note regarding the law of continuous
sexual assault,” and that the court violated his due process rights and Texas Rules of
Evidence 606(b) when it granted the state’s motion to quash appellant’s juror
subpoenas. Finally, appellant argues the trial court violated Texas Rules of Evidence
103(a)(2) when it denied appellant the “ability to make offers of proof.”
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II. INQUIRY INTO COMPLAINANT’S SEXUAL HISTORY
In his first issue, appellant argues that the trial abused its discretion when it
sustained the State’s objection to appellant’s questions regarding H.W.’s prior
consensual sexual activity pursuant to Texas Rule of Evidence 412.
A. Standard of Review & Applicable Law
We afford trial judges wide discretion in limiting the extent and scope of
cross-examination. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
We will not disturb the trial court’s evidentiary ruling if it is correct under any
applicable theory of law, even if the court gave a wrong or insufficient reason for
the ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
Evidence of the reputation or opinion evidence of a victim’s past sexual
behavior or specific instances of a victim’s past sexual behavior is inadmissible in a
trial for sexual assault. See Tex. R. Evid. 412(a); Alford v. State, 495 S.W.3d 63, 66-
67 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). However, this evidence is
admissible if it is necessary to rebut or explain scientific/medical evidence offered
by the prosecutor and the probative value of the evidence outweighs the danger of
unfair prejudice. Tex. R. Evid. 412(b). There is a specific procedure within this
admissibility exception for offering evidence of the victim’s past sexual behavior:
before offering any evidence of the victim’s past sexual behavior, the
defendant must inform the court outside the jury’s presence. The court
must then conduct an in-camera hearing, recorded by a court reporter,
and determine whether the proposed evidence is admissible. The
defendant may not refer to any evidence ruled inadmissible without first
requesting and gaining the court’s approval outside the jury’s presence.
Tex. R. Evid. 412(c) (emphasis added). A defendant fails to meet the procedural
requirement for admissibility when he does not inform the court beforehand of his
intention to introduce evidence of past sexual behavior of the victim and attempts to
12
elicit such testimony on cross-examination in front of the jury. When the defendant
fails to meet the procedural requirements of Rule 412(b), he cannot later complain
on appeal of the exclusion of the evidence. See Marx v. State, 953 S.W.2d 321, 337
(Tex. App.—Austin 1997), aff’d, 987 S.W.2d 577 (Tex. Crim. App. 1999)
(“[A]ppellant did not inform the court of his intention to inquire into the incident
concerning the uncle prior to asking the witness about it. Instead, appellant attempted
to ask about the incident on cross-examination in front of the jury, whereupon the
State objected. Because [appellant] did not meet Rule 412’s procedural requirement
for introducing this evidence, he cannot now complain of its exclusion.”); Golden v.
State, 762 S.W.2d 630, 632 (Tex. App.—Texarkana 1988, pet. ref’d) (same).
B. Application
During both the cross-examination of the SANE nurse and Lee, appellant
attempted to bring forth evidence regarding H.W.’s and C.W’s sexual history.
However, appellant did not inform the trial court outside of the jury’s presence of
his intention to ask these questions before attempting to ask them. Because appellant
did not satisfy Rule 412’s requirement for the introduction of evidence of the
complainants’ sexual history, he cannot now complain of its exclusion. See Tex. R.
Evid. 412(c); Johnson, 490 S.W.3d at 908; Marx, 953 S.W.2d at 337.
We overrule appellant’s first issue.
III. EVIDENCE OF DEFERRED ADJUDICATION PROBATION
In his second issue, appellant argues that the trial court erred when it allowed
the State to impeach him with evidence of his successfully completed deferred
adjudication probation.
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A. Standard of Review & Applicable Law
We review a trial court’s decision regarding the admissibility of evidence
under an abuse of discretion standard. Johnson, 490 S.W.3d at 908; Walker v. State,
2 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). A trial court
abuses its discretion if it acts without reference to guiding rules and principles or
acts arbitrarily and unreasonably. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.
Crim. App. 1990). We will only reverse the judgment if the trial court’s ruling was
outside the “zone of reasonable disagreement.” Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003).
Rule 609 governs the admissibility of prior convictions used to impeach a
witness. See Tex. R. Evid. 609. Rule 609 requires that evidence of criminal
convictions offered to attack a witness’ character for truthfulness must be admitted
if (1) the crime was a felony or involved moral turpitude, regardless of punishment;
(2) the probative value of the evidence outweighs its prejudicial effect to a party;
and (3) it is elicited from the witness or established by public record. See Tex. R.
Evid. 609(a).
Evidence that is otherwise inadmissible may be admissible if the party against
whom such evidence is offered “opens the door” for its admission. See Schutz v.
State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997); see also Moses v. State, 105
S.W.3d 622, 626 (Tex. Crim. App. 2003) (rebutting a defensive theory is “one of the
permissible purposes for which relevant evidence may be admitted under Rule
404(b)”). A party opens the door by “leaving a false impression with the jury that
invites the other side to respond,” but regardless, the trial judge maintains discretion
to exclude the evidence. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App.
2009). Evidence of deferred adjudication or a defendant being on parole can be
admissible under Rule 404(b). See Powell v. State, 189 S.W.3d 285, 286 (Tex. Crim.
14
App. 2006); Moreno v. State, 944 S.W.2d 685, 692 (Tex. App.—Houston [14th
Dist.] 1997), aff’d, 22 S.W.3d 482 (Tex. Crim. App. 1999); see also Britt v. State,
No. 14-06-00131-CR, 2007 WL 1215490, at *5 (Tex. App.—Houston [14th Dist.]
Apr. 26, 2007, pet. ref’d) (mem. op., not designated for publication); Owen v. State,
No. 2-03-164-CR, 2004 WL 966323, at *5 (Tex. App.—Fort Worth May 6, 2004,
no pet.) (mem. op., not designated for publication).
Stated differently, extraneous offenses are not admissible at the guilt-
innocence phase of trial to prove that a defendant acted in conformity with his
character by committing the charged offense, but extraneous offense evidence that
tends to make an elemental or evidentiary fact more or less probable or tends to rebut
some defensive theory is relevant beyond its tendency to prove a person’s character
or that he acted in conformity therewith. See Tex. R. Evid. 404(b); Montgomery v.
State, 810 S.W.2d 372, 386–87 (Tex. Crim. App. 1991) (op. on reh’g); Owen, 2004
WL 966323, at *5 (concluding that the trial court did not err in admitting evidence
of defendant’s deferred adjudication probation to rebut defendant’s defensive theory
that she was not aware the FedEx package contained drugs); cf. Moreno, 944 S.W.2d
at 692 (concluding that the trial court erred in admitting evidence of defendant’s
deferred adjudication because “the evidence of appellant’s deferred adjudication
status had no tendency to make the existence of any fact of consequence to the
determination of the action more probable or less probable than it would be without
the evidence”) (internal quotations omitted).
B. Application
Appellant argues that because he successfully completed his misdemeanor
deferred adjudication for assault of a family member, evidence of that offense was
not admissible under Rule 609. However, below and on appeal, the State argues that
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evidence of the offense was admissible under Rule 404(b) to rebut appellants’
defensive theories.
During trial, appellant gave the impression that he was not violent with the
children by testifying that he was never physically violent with Lee or the children
and by eliciting testimony from Lee multiple times as to whether C.W. and H.W.
were afraid of appellant. Appellant also called seven witnesses, all of whom testified
concerning his trustworthiness and “safe conduct around young children.” Appellant
was asked “had you been doing a pattern of domestic violence during any of this
time that you would—that you thought of?”; appellant answered “No. No.”
Appellant also testified he was shocked to learn that C.W. and H.W were scared of
him because he “never” did anything that would make them fearful of him being
abusive.
Appellant’s overall defensive theory was that he was trustworthy, safe around
children, and that C.W. and H.W. had absolutely no reason to fear him because he
was never abusive. Additionally, a component of his defensive theory was that the
complainants simply lied about the allegations because Lee hated him and wanted
to put him in jail. Because appellant created an impression that the children had no
reason to fear him, the State was entitled to present evidence to rebut this defensive
theory. See Tex. R. Evid. 404(b); Schutz, 957 S.W.2d at 71. Evidence of appellant’s
past assault of a family member helps rebut appellant’s theory that the complainants
had no reason to fear him. See Montgomery, 810 S.W.2d at 386–87; Moreno, 944
S.W.2d at 692. Accordingly, we cannot conclude that the trial court abused its
discretion in finding that appellant had opened the door to evidence of his prior
assault on a family deferred adjudication. See Johnson, 490 S.W.3d at 908.
We overrule appellant’s second issue.
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IV. THE TRIAL COURT’S RESPONSE TO THE JURY’S NOTE
In his third issue, appellant argues that the trial court erred by failing to
provide further instruction in response to the jury’s note sent to the trial court during
jury deliberations. Appellant did not object to the trial court’s response to the jury
note at trial. Nevertheless, appellant argues that he is entitled to a “some harm”
analysis because the record does not reflect that he was aware of the jury note and
did not have an opportunity to respond or object to the court’s response to the note.
The facts here are identical to the facts in Green v. State, 912 S.W.2d 189, 192 (Tex.
Crim. App. 1995). In Green, the defendant argued that based on the record, it was
not clear that he was aware of the jury note, and thus he did not have an opportunity
to object to the trial court’s response to the jury note. See id. In rejecting this
argument, the Court of Criminal Appeals noted:
This Court does not decide cases based on speculation about matters
not shown in the record. In the absence of a showing to the contrary in
the record, we presume the trial court’s response was in open court and
in appellant’s presence. Therefore, we also presume appellant had an
opportunity to object.
Id. The high court in Green concluded that the defendant waived any error. See id.
at 193.
In the present case, we presume that the trial court’s response was made in
open court and in the presence of appellant. See id. Therefore, we conclude that
appellant has waived any error based on the trial court’s response to the jury note.
See id.; see also Hisey v. State, No. 01-19-00929-CR, 2021 WL 627040, at *4 (Tex.
App.—Houston [1st Dist.] Feb. 18, 2021, pet. ref’d) (mem. op., not designated for
publication) (concluding that defendant waived error concerning the trial court’s
response to a jury note because he did not object and it is presumed the trial court
responded in open court and in the defendant’s presence).
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We overrule appellant’s third issue.
V. MOTION FOR NEW TRIAL
In his last four issues, appellant argues that the trial court erred by: quashing
appellant’s juror subpoenas (sixth issue); granting the State’s objection to the
testimony of appellant’s trial attorney regarding jury misconduct (fifth issue);
denying appellant the opportunity to make an offer of proof (seventh issue); and
denying his motion for new trial (fourth issue).
A. Standard of Review & Applicable Law
We review the trial court’s denial of a motion for new trial under an abuse of
discretion standard. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App.
2012). When jury misconduct is the basis for the motion for new trial, whether
misconduct occurred is a determination made by the trial court, which will not be
disturbed on appeal absent an abuse of discretion. See Short v. State, 995 S.W.2d
948, 954 (Tex. App.—Fort Worth 1999, pet. ref’d); Dixon v. State, No. 14-00-
00028-CR, 2001 WL 815061, at *4 (Tex. App.—Houston [14th Dist.] July 19, 2001,
pet. ref’d) (not designated for publication). Further, the movant must show that the
jury misconduct occurred and that the misconduct was detrimental to the movant.
Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981).
The privacy of jury deliberations is strictly enforced by Texas’ Code of
Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.22. The Texas Court of
Criminal Appeals has emphasized that jury deliberations are to be conducted in a
“veil of confidentiality.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 200 (Tex.
Crim. App. 2003).
This policy extends to post-verdict juror testimony. See White v. State, 225
S.W.3d 571, 575 (Tex. Crim. App. 2007) (Price, J., concurring). The court may not
18
receive a juror’s affidavit or evidence of a juror’s statement that concerns any
incident that occurred during the jury’s deliberations, or the effect of anything on
that juror’s or another juror’s vote, or any juror’s mental processes concerning the
verdict or indictment. Tex. R. Evid. 606(b)(1). However, a juror may testify about
whether an outside influence was improperly brought to bear on any juror, or to rebut
a claim that the juror was not qualified to serve. Tex. R. Evid. 606(b)(2)(A-B). The
purpose of these exceptions is to allow proof of external pressures that are likely to
affect the verdict. Colyer v. State, 428 S.W.3d 117, 118 (Tex. Crim. App. 2014). An
“outside influence” is something originating from a source outside of the jury room
and other than from the jurors themselves. McQuarrie v. State, 380 S.W.3d 145, 154
(Tex. Crim. App. 2012). To allow jurors to feel free to raise and discuss differing
viewpoints without the fear of public opinion or scrutiny, the trial court may not
inquire into the subjective thought processes of the jury during deliberations. Id. at
153.
B. Application
In support of his motion for new trial, appellant attached three jurors’
affidavits averring, in similarly-worded language, that they did not believe C.W.’s
testimony, that they were unsure if they “had to find if [appellant] committed two
instances of indecency or sexual assault against each complaining witness,” the
judge did not answer “this very same question,” and they stopped deliberating after
a “finding of two acts of sexual assault against either of the two complainants.”
During the hearing on appellant’s motion, when appellant’s counsel attempted
to testify as to what jurors told him had occurred during jury deliberations, the trial
court sustained the State’s objections and refused to allow appellant’s counsel to
testify concerning his conversations with the jurors. Shortly after, the trial court
allowed appellant to make an offer of proof. Appellant’s counsel proceeded to testify
19
that he spoke with eight of the jurors and that he learned of “jury misconduct,”
namely that the “conviction was based on two or more incidents involving [H.W.]
alone.” The trial court then asked appellant’s counsel several follow-up questions:
[Trial court]: Were you ever concerned that the jurors were
subject to outside influence during their
deliberations?
[Appellant’s counsel]: Not that I’m aware of.
[Trial court]: Did you have any questions as to the
qualifications of any of the jurors that you
spoke with?
[Appellant’s counsel]: No. They understood and were able—to the
best of my knowledge, they were qualified.
1. Quashing the Juror Subpoenas
Rule 606(b) does not allow evidence to be admitted pertaining to what
occurred during jury deliberations, unless such evidence would show that an outside
influence was improperly brought to bear upon a juror or to rebut a claim that a juror
is not qualified to serve. Tex. R. Evid. 606(b). Appellant’s counsel admitted that
there was no concern that jurors were improperly subject to an outside influence; nor
was there a concern that the jurors were not qualified. Therefore, we conclude that
the trial court did not err by quashing the juror subpoenas. See id.; McQuarrie, 380
S.W.3d at 154; see also Tinker v. State, 148 S.W.3d 666, 673 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (“The trial court quashed the affidavit and, because it was
the only support for appellant’s motion, the court denied the motion for new trial
without a hearing. After reviewing the juror’s affidavit in this case, we find that it
addressed only matters which the juror learned during jury deliberations. These
matters clearly came from the other jurors and, as such, do not constitute outside
20
influences. Accordingly, the trial court properly quashed the juror affidavit and
denied appellant’s motion for new trial.”).
Appellant further suggests that rules such as Rule 606(b) must “give way to
due process.” Thus, according to appellant, despite Rule 606, he should have been
allowed to subpoena the jurors to prevent the denial of due process and a fair trial.
However, we have previously observed that Rule 606 is constitutional under both
the state and federal constitutions guaranteeing a fair and impartial jury. See Hicks
v. State, 15 S.W.3d 626, 630 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)
(citing Hines v. State, 3 S.W.3d 618, 622–623 (Tex. App.—Texarkana 1999, pet.
ref’d); Sanders v. State, 1 S.W.3d 885, 888 (Tex. App.—Austin 1999, no pet.)).
We overrule appellant’s sixth issue.
2. Disallowing Appellant’s Counsel Testimony Regarding Jurors
Appellant also complains that the trial court erred by disallowing appellant’s
counsel to testify concerning his conversations with the jurors. This court has
concluded that Rule 606 does not conflict with Texas Rule of Appellate Procedure
21.3 because Rule 606 does not “preclude proof of jury misconduct by other means,
such as through the testimony of a nonjuror with personal knowledge of the
misconduct.” Hicks, 15 S.W.3d at 630; see Tex. R. App. P. 21.3. We find Mayo v.
State, 708 S.W.2d 854 (Tex. Crim. App. 1986) to be instructive. In Mayo, a witness
was permitted to testify concerning a telephone conversation he had with the
foreman of the jury, which occurred before final arguments and jury deliberations
had begun. Id. at 856. However, unlike the witness in Mayo, appellant’s counsel
sought to testify concerning his conversations with the jurors to describe what
occurred during jury deliberations after the jury rendered a verdict. Accordingly, we
conclude that the trial court did not err in refusing to allow appellant’s counsel to
21
testify concerning his conversations with the jurors. See Tex. R. Evid. 602(b); Mayo,
708 S.W.2d at 856.
We overrule appellant’s fifth issue.
3. Offers of Proof
Appellant next asserts that he was improperly denied the ability to make offers
of proof concerning the jurors’ conversations. See Tex. R. Evid. 103(a)(2), (c)
(requiring the trial court to allow parties to make an offer of proof).
The right to make an offer of proof is absolute. See Kipp v. State, 876 S.W.2d
330, 333 (Tex. Crim. App. 1994). A trial court does not have the option to deny such
a request, although such denial is subject to a non-constitutional harm analysis. See
Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Kipp, 876 S.W.2d at
333. To preserve error for appeal, an offer of proof must set forth the substance of
the proffered evidence. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.
2009). Here, contrary to appellant’s argument, appellant was allowed to make
adequate offers of proof.
As we noted above, while the trial court did not allow the jurors to be
subpoenaed or allow appellant’s counsel to testify during the hearing regarding his
conversation with the jurors, the trial court allowed appellant to make offers of proof
regarding the jury discussions. Appellant’s counsel testified concerning his
conversations with the jurors and how he learned that the jury allegedly disbelieved
C.W., and that the foreperson may have instructed the other jurors how to interpret
the application paragraph of the jury charge. The trial court verified with appellant’s
counsel that there was no concern of an outside influence on the jurors or any
concern regarding the jurors’ qualifications to serve. Additionally, we note that
although the trial court seemingly agreed with the State’s request to strike the three
22
juror affidavits attached to the motion for new trial, the affidavits are part of the
appellate record. Accordingly, based on our review of the transcript and the record,
we conclude that the trial court allowed appellant to make adequate offers of proof
setting forth the substance of the proffered evidence. See Tex. R. Evid. 103(2); Kipp,
876 S.W.2d at 333.
We also note that appellant provides no authority for his argument that he was
entitled to make offers of proof by calling the jurors themselves to testify. Contrary
to appellant’s argument, unless a juror is testifying regarding improper outside
influences or in rebuttal of a claim that a juror was not qualified to serve, “a juror
may not testify about any statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another juror’s vote; or any
juror’s mental processes concerning the verdict or indictment.” Tex. R. Evid. 606(b).
Thus, we reject appellant’s argument because Rule 606 prevented the trial court from
receiving the testimony appellant sought to present. See id. Finally, assuming
arguendo the trial court erred, the testimony regarding the jury’s deliberations and
processes concerning the verdict is barred by Rule 606, and thus, appellant has failed
to establish harm. See Tex. R. App. P. 44.2(a); Tex. R. Evid. 606(b); Potier, 68
S.W.3d at 659.
We overrule appellant’s seventh issue.
4. Motion for New Trial
In his fourth issue, appellant asserts that the trial court should have granted
his motion for new trial because: (1) the trial court misdirected the jury regarding
the law by not giving a more detailed response to the jury note; (2) the verdict was
decided in a manner that was not a fair expression of the jurors’ opinion; (3) the jury
23
engaged in misconduct that deprive appellant of a fair trial; and (4) the verdict was
contrary to the law and evidence. See Tex. R. App. P. 21.3.
Concerning the first ground, we previously concluded that appellant waived
any error relating to the trial court’s response to the jury note. Appellant did not
object to the language of the jury charge below, and he makes no complaint about
the language of the jury charge itself on appeal.
Regarding the second ground for new trial, appellant has not shown that the
verdict was “decided by lots or in any manner other than a fair expression of the
jurors’ opinion.” See Tex. R. App. P. 21.3(c). Here, the jury returned a verdict,
stating, “We, the jury, find [appellant], guilty of continuous sexual abuse of a child
as charged in the indictment.” The jury was then polled by the trial court; every juror
was individually asked, “is this your verdict?”, and every juror responded, “yes.”
Because the record contains sufficient evidence to support the conclusion that the
verdict is a fair expression of the jurors’ opinion, we hold that the trial court did not
abuse its discretion in denying appellant’s motion for new trial on this ground. See
McQuarrie, 380 S.W.3d at 150; Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim.
App. 1984) (“[W]here there is conflicting evidence[,] there is no abuse of discretion
where the motion for new trial is overruled.”); see also Colyer, 428 S.W.3d at 126(“The policy of upholding the finality of verdicts was served in this case by polling
the jury. . . . After the jurors were excused, the time for post-verdict doubts had
passed. . . . A juror’s vote, when polled in open court, is a ‘final sale’ item; it cannot
be exchanged because that juror later has buyer’s remorse.”).
Regarding the third ground for new trial, we previously concluded that the
trial court properly refused to allow appellant’s counsel to testify concerning his
conversations with the jurors and that the trial court did not err by quashing the juror
24
subpoenas. Thus, there was no evidence in the record of any jury misconduct to
support a new trial. See Id. R. 21.3(g); see also Tex. Evid. R. 606(b)(2).
Appellant’s fourth ground for new trial can be summarized in two arguments.
Appellant argues that the verdict was contrary to the law and evidence because: (1)
venue in Harris County was proven to be improper; and (2) there was a variance
between the indictment and the proof at trial—stated differently, the jury rendered a
verdict on a theory not alleged in the charging instrument. We first address his
argument that venue was improper.
a. Venue was Proper in Harris County
In his motion for new trial, appellant asserted that the jury was required “to
find both the Harris County and Polk County allegations true before rendering a
verdict of guilty.” According to appellant, the jury’s failure to believe any assault
occurred against C.W. in Harris County divested the trial court of venue. But to
convict a defendant for the crime of continuous sexual abuse of a child, “members
of the jury are not required to agree unanimously on which specific acts of sexual
abuse were committed by the defendant or the exact date when those acts were
committed. The jury must agree unanimously that the defendant, during a period that
is 30 or more days in duration, committed two or more acts of sexual abuse.” Tex.
Penal Code Ann. § 21.02(d). The location of the sexual acts is not an element of the
offense. Thus, the jury did not need to find that appellant had committed sexual
assault in both Polk County and Harris County before rendering a verdict. See id.;
Hinojosa v. State, 555 S.W.3d 262, 267 (Tex. App.—Houston [1st Dist.] 2018, pet.
ref’d).
25
Additionally, under Article 13.075 of the Code of Criminal Procedure, an
offense involving a victim younger than eighteen years of age that results in bodily
injury to that victim, may be prosecuted in the county:
(1) in which an element of the offense was committed;
(2) in which the defendant is apprehended;
(3) in which the victim resides; or
(4) in which the defendant resides.
Tex. Code Crim. Proc. Ann. art. 13.075. Accordingly, because it is undisputed that
appellant resides in Harris County, we conclude that venue was proper in Harris
County. Id. art. 13.075(4).
b. There Was No Fatal Variance
We next address appellant’s claim that there was a variance between the
indictment and the proof at trial.
i. Standard of Review & Applicable Law
“A ‘variance’ occurs whenever there is a discrepancy between the allegations
in the indictment and the proof offered at trial.” Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011). But not all variances require reversal:
The Court of Criminal Appeals has decreed that a materiality inquiry
must be made in all cases involving a sufficiency of the evidence claim
based on a variance between the indictment and the evidence. Such a
variance will be considered “fatal,” and thus render the evidence
insufficient, only when it is “material.” A variance is material if it (1)
deprived the defendant of sufficient notice of the charges against him
such that he could not prepare an adequate defense, or (2) would subject
him to the risk of being prosecuted twice for the same offense.
26
Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (internal citations omitted).
The Court of Criminal Appeals has recognized three different categories
of variance:
1. a statutory allegation that defines the offense; not subject to
materiality analysis, or, if it is, is always material; the hypothetically
correct jury charge will always include the statutory allegations in the
indictment;
2. a non-statutory allegation that is descriptive of an element of the
offense that defines or helps define the allowable unit of
prosecution; sometimes material; the hypothetically correct jury charge
will sometimes include the non-statutory allegations in the indictment
and sometimes not;
3. a non-statutory allegation that has nothing to do with the allowable
unit of prosecution; never material; the hypothetically correct jury
charge will never include the non-statutory allegations in the
indictment.
Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018); see Root v.
State, 615 S.W.3d 920, 928 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). “The
bottom line is that . . . we tolerate variances as long as they are not so great that the
proof at trial ‘shows an entirely different offense’ than what was alleged in the
charging instrument.” Ramjattansingh, 548 S.W.3d at 547; Johnson v. State, 364
S.W.3d 292, 295 (Tex. Crim. App. 2012) (“For example, in a murder prosecution,
the victim’s name need not be proved with exactness, but the State must prove that
the victim alleged in the indictment is the same person as the victim proved at trial.”);
cf. Beasley v. State, 426 S.W.3d 140, 148 (Tex. App.—Houston [1st Dist.] 2012, no
pet.) (concluding that defendant’s due process rights were violated when he was
charged with burglary of a habitation with intent to commit sexual assault but he was
found guilty of sexual assault).
27
“The burden of demonstrating materiality in the variance context rests with
the [a]ppellant.” Coleman v. State, 631 S.W.3d 744, 755 (Tex. App.—Houston [14th
Dist.] 2021, pet. ref’d).
ii. Analysis
Appellant argues that there was a variance between the indictment and the
proof at trial because he was charged with committing continuous sexual assault of
a child by sexually abusing H.W. and C.W., but the jurors ultimately found him
guilty of continuous sexual assault by committing two instances of sexual abuse
against H.W. Stated differently, appellant alleges that his due process rights were
violated because “[i]t is manifestly unfair to charge a citizen with a specific crime
and a specific manner and means of committing said crime, and then to allow
conviction under a different theory altogether.” However, the proof at trial included
evidence that appellant committed continuous sexual assault of a child by sexually
abusing both H.W. and C.W.; thus, there is no variance between the indictment and
the proof at trial. Additionally, as noted above, the jury was polled and every member
testified that it was their verdict that appellant was guilty of continuous sexual abuse
of a child as alleged in the indictment.
However, assuming for the sake of argument that there was a variance,
appellant has still failed in his burden to demonstrate that the alleged variance was
material. See Coleman, 631 S.W.3d at 755. Appellant does not argue that the
allegations in the indictment would subject him to the risk of being prosecuted twice
for the same offense; instead, he asserts that he could not prepare an adequate
defense because he had no notice that the State intended to prove a multiple
occurrence case against a single victim.
28
Appellant cites to cases such as Beasley for the proposition that a defendant
can only be convicted for the offense as charged in the indictment. See Beasley, 426
S.W.3d at 149 (“Allowing a jury to find the defendant guilty of an unindicted offense
that was not a lesser-included offense of the charged offense runs afoul of due
process requirements.”). However, cases like Beasley are distinguishable because
the defendant in Beasley was charged with one offense—burglary of a habitation
with intent to commit sexual assault—but convicted on a completely independent
offense—sexual assault. See id. Here, appellant was convicted of the same offense
with which he was charged—continuous sexual assault of a child.
The indictment properly gave appellant notice that the State would produce
evidence from both H.W. and C.W. concerning alleged instances of sexual abuse.
But even if the indictment was not sufficient, standing alone, to provide notice to
appellant that the State alleged multiple occurrences against a single victim, “when
analyzing whether a defendant received notice of the offense adequate to satisfy due
process concerns, we are not required to look solely to the language of the charging
instrument.” Buxton v. State, 526 S.W.3d 666, 682 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d). In September 2018, the State filed a “Notice of Intention to Use
Child Abuse Victim’s Hearsay Statement.” This notice clearly indicated that while
C.W. only alleged a single incident of sexual abuse, H.W. alleged that appellant
sexually abused her “several times” and on “several occasions.” In June 2019, the
State filed its “State’s Notice of Intention to Use Extraneous Offenses and Prior
Convictions.” In this notice, the State detailed its intent to introduce evidence that
appellant sexually abused C.W. on “multiple occasions” between April 2011 and
October 2011, and that he abused H.W. on “multiple occasions” between October
2011 and January 2012. When considering together the indictment and the pretrial
29
filings by the State, the record demonstrates appellant received notice of the State’s
theory of criminal liability such that he could adequately prepare a defense. Id.Because the indictment did not deprive appellant of sufficient notice of the
charges against him or subject him to the risk of being prosecuted twice for the same
offense, we conclude that any alleged variance was not material. See Rogers, 200
S.W.3d at 236. In summary, we conclude that there was no variance between the
indictment and the proof at trial, and that if there was some variance, such variance
was not material because appellant has failed to demonstrate that the proof at trial
showed an “entirely different offense” than what was alleged in the charging
instrument. Ramjattansingh, 548 S.W.3d at 547.
Accordingly, we hold that the trial court did not err by denying appellant’s
motion for new trial. We overrule appellant’s fourth issue. See Tinker, 148 S.W.3d
at 673.
VI. CONCLUSION
We affirm the judgment of the trial court.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
Publish – Tex. R. App. P. 47.2(b)
30