Glen Edward Moon v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00041-CR



Glen Edward Moon, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0921124, HONORABLE LARRY FULLER, JUDGE PRESIDING

A jury found Glen Edward Moon guilty of aggravated sexual assault of a child and sentenced him to forty-five years' confinement. See Tex. Penal Code Ann. § 22.021 (West 1994). ⁽¹⁾ The trial court rendered judgment accordingly. We will affirm the judgment.

DISCUSSION

In his first point of error, Moon complains the trial court erred in not severing paragraphs one and two of the indictment pursuant to section 3.04 of the Texas Penal Code. See Tex. Penal Code Ann. § 3.04 (West 1994). Paragraph one of the indictment alleges that Moon intentionally and knowingly caused the penetration of the female sexual organ of a child with his sexual organ, while paragraph two alleges Moon caused the penetration of the child's mouth with his sexual organ. Moon contends that these were two separate offenses requiring severance upon the request of the defendant, citing Warmowski v. State, 853 S.W.2d 575 (Tex. Crim. App. 1993). Warmowski provides the defendant with an absolute right to sever consolidated indictments pursuant to section 3.04 of the Penal Code. ⁽²⁾ Section 3.04(a) provides that "[w]henever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses." Tex. Penal Code Ann. § 3.04(a) (West 1994).

Contrary to Moon's assertion, the indictment simply sets forth two ways in which the single offense of aggravated sexual assault may have been committed. A single "count may contain as many separate paragraphs charging the same offense as necessary." Tex. Code Crim. Proc. Ann. art. 21.24(b) (West 1989); Martinez v. State, 498 S.W.2d 938, 943 (Tex. Crim. App. 1973). In this cause, the two paragraphs contained identical language except for the manner of penetration alleged. See Offor v. State, 749 S.W.2d 946, 952 (Tex. App.--Austin 1988, pet. ref'd untimely filed). Because only one offense was alleged in the indictment, Warmowski does not apply. See Warmowski, 853 S.W.2d 575. We therefore overrule Moon's first point of error.

In his second point of error, Moon contends the trial court erred in permitting the State's expert witness to bolster the child complainant's testimony over defense counsel's objection. Specifically, Moon complains that Dr. Judith Yeager, a child therapist, should not have been allowed to relate the substance of her discussions with the complainant during therapy sessions because this amounted to bolstering the testimony of an unimpeached witness, citing Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990), overruled by, Cohn v. State 849 S.W.2d 817 (Tex. Crim. App. 1993); Yount v. State, 808 S.W.2d 633 (Tex. App.--Austin 1991), aff'd, 872 S.W.2d 706 (Tex. Crim. App. 1993). The Court of Criminal Appeals recently addressed the bolstering issue in Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993). In Cohn, expert testimony concerning certain anxiety behaviors exhibited by child complainants was held admissible, even though the testimony bolstered the complainants' statements that they were sexually molested. Id. at 820. The Cohn court specifically disapproved Duckett to the extent that it held inadmissible relevant expert testimony unless that testimony also served a rehabilitative function. Id. at 819. Relevant evidence will no longer be excluded simply because it corroborates the previous testimony of another witness whose credibility was not challenged. Yeager's testimony as an expert on sexually abused children, was admissible despite the fact that it tended to corroborate the complainant's testimony. In light of Cohn, we overrule Moon's second point of error.

In point his third point of error, Moon complains the trial court erred in not instructing the jury to disregard an inflammatory outburst made by Charlissa White, Moon's girlfriend, upon the reading of the jury's verdict. However, no objection was made at the time of the outburst as required to preserve error. See Rezac v. State, 782 S.W.2d 869 (Tex. Crim. App. 1990). Conceding at oral argument that no objection was made regarding the outburst, Moon contends that the outburst was so egregious that the trial court had the duty to instruct the jury to disregard the outburst pursuant to section 21.001(b) of the Texas Government Code. ⁽³⁾ Moon, however, fails to cite any authority which mandates that a court instruct the jury to disregard spectator comments absent an objection and request for instruction. ⁽⁴⁾

In addition to preserving error, Moon must show that he was harmed by the outburst. A bystander's remark "which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows a reasonable probability that the conduct interfered with the jury's verdict." Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986). Moon argues that White's conduct in cursing the jurors before sentencing deliberations resulted in an unusually harsh punishment for Moon and that a reasonable probability exists that the outburst "vitiated any humane considerations that might have remained in the hearts and minds of the jury towards the appellant." Moon's appellate counsel filed an affidavit stating that he telephoned several of the jurors in order to determine the effect White's outburst on the jury. His affidavit states:

While none of the jurors questioned were willing to admit that the remarks of Ms. White adversely affected their deliberations, each juror questioned admitted, that the incident was discussed in the jury room, albeit not at length. I was also told that at least one juror expressed concern regarding security and the possibility that she might encounter Ms. White in the hallway during a break in their deliberations.

Absent an affidavit from at least one juror stating that White's outburst affected his or her decision, this Court is unable to determine whether the alleged jury misconduct existed. Black v. State, 491 S.W.2d 428 (Tex. Crim. App. 1973), overruled on other grounds, 549 S.W.2d 1 (Tex. Crim. App. 1976). Moon has failed to provide any indication of harm. We overrule Moon's third point of error.

In his final point of error, Moon complains the trial court erred in admitting evidence of an extraneous offense in violation of his motion in limine and rule 404(b) of the Texas Rules of Criminal Evidence. ⁽⁵⁾ Specifically, Moon complains he was portrayed as a "criminal in general" when the prosecutor cross-examined him regarding a theft charge pending against him.

The State argues that the theft-charge testimony was not introduced to show character conformity, but was used for impeachment purposes only. By taking the stand, Moon put his character for veracity in issue and was thus subject to impeachment like any other witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988); Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986).

As a general rule, specific instances of conduct, such as arrests or charges which have not resulted in convictions, may not be inquired into on cross-examination. Tex. R. Crim. Evid. 608(b); Prescott, 744 S.W.2d at 130. An exception exists when a witness, during direct examination, leaves a false impression that he has never been arrested, charged, or convicted of prior offenses or that he has never been in trouble with the police. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990); Prescott, 744 S.W.2d at 131; Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App. 1972).

During direct examination, the following exchange transpired:

[Defense Counsel]: "Mr. Moon, you were fired from UPS after you were arrested on this [sexual assault] charge. Is that correct?"

[Moon]: "That's correct."

[Defense Counsel]: "And you were planning to fight that until such time as you went to the federal penitentiary because at the time you were arrested on this charge, they asked to search your house, didn't they?"

[Moon]: "Yes, they asked to search my house."

[Defense Counsel]: "And what did they want to search your house for?"

[Moon]: "They stated that they wanted to search for child pornographic material."

[Defense Counsel]: "And did you give them permission to do that?"

[Moon]: "Yes, sir, I did."

[Defense Counsel]: "And why did you give them permission to do [sic]?"

[Moon]: "Because that is not something I would do or keep around my house."

[Defense Counsel]: "And during that search, did they find the cocaine that you were convicted of possessing?"

[Moon]: "Yes, they found the cocaine that I was convicted of."

[Defense Counsel]: "Okay. And as a result of that, those arrests and so on, UPS fired you?"

[Moon]: "Yes, sir, they fired me after the results of all of that."

Cross-examination consisted of the following dialogue:

[Prosecutor]: "I asked you about that cocaine use and you kind of acted like it didn't affect you and [Defense Counsel] asked you about it. And you talked about getting drug rehabilitation and the bad experiences you had with cocaine. What bad experiences are you talking about?"

[Moon]: "I'm talking about losing my job that I had for six years."

[Prosecutor]: "Now, you know that wasn't the reason you lost that job. Weren't you stealing from them?"

[Moon]: "Stealing from them?"

[Prosecutor]: "From UPS?"

[Moon]: "No."

* * *

[Prosecutor]: "When the police were in there, they found stuff you had stolen from UPS, didn't they?"

[Moon]: "I stole?"

[Prosecutor]: "Well, it was in your apartment. It came in through the area you worked at. You stole that, didn't you?"

[Defense Counsel]: "Your Honor, again -- again, Your Honor, a deliberate, willful, intentional violation of the motion in limine, a deliberate, willful, intentional violation of 404(b) and that is deliberate misconduct. He knows that there -- that is just -- it's just uncalled for."

[The Court]: "Overruled. You can answer the question."

[Moon]: "What was the question again?"

[Prosecutor]: "You were fired for stealing. You weren't fired because you were arrested on the drug charges."

[Moon]: "I don't agree with that."

[Prosecutor]: "Well, you had the stolen property that belonged to UPS in your apartment when the police went there, didn't you?"

[Moon]: "Yes, I did."

[Prosecutor]: "Okay. And you worked on the UPS shipping dock, didn't you?"

[Moon]: "Yes, I did."

[Prosecutor]: "And the stuff that was stolen came through where you worked, didn't it?"

[Moon]: "It comes not through where I work, no. I don't know where it came from."

Moon's direct testimony gave the false impression that UPS terminated Moon's employment because of his drug arrest rather than the theft allegations. The defense, thereby opened the door for the prosecution to impeach Moon on a collateral matter. See Bell v. State, 620 S.W.2d 116, 126 (Tex. Crim. App. 1980) (defense counsel opened the door by asking accused, "Have you anything in your past of a criminal nature?"; prosecution entitled to impeach using specific instances of conduct); Reese v. State, 531 S.W.2d 638, 641 (Tex. Crim. App. 1976) (defendant's statement that he had been in trouble with the law in connection with a theft charge allowed prosecutor to introduce other arrests); Garcia v. State, 454 S.W.2d 400, 406 (Tex. Crim. App. 1970) (State authorized to introduce previous fights after defendant claimed inexperience as a fighter). We overrule Moon's final point of error.

CONCLUSION

In light of the foregoing, we affirm the trial-court conviction.

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: March 8, 1995

Do Not Publish

1.   This offense took place before September 1, 1994, and is governed by the law in effect at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. Because the code amendments effective September 1, 1994, have no relevance to this appeal, the current code is cited throughout this opinion for convenience.

2.   Warmowski held that failure to sever in accordance with section 3.04(a) is reversible error not subject to harm analysis. Warmowski, 853 S.W.2d at 578. Thus, we must first address the applicability of section 3.04(a), even though the jury charge contained only paragraph one of the indictment, arguably curing any error.

3.   Section 21.001(b) states: "[a] court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice can be done." Tex. Gov't Code Ann. § 21.001(b) (West 1988).

4.   Moon cites Landry v. State, 706 S.W.2d 105 (Tex. Crim. App. 1985), cert denied, 479 U.S. 871 (1986); Ashley v. State, 362 S.W.2d 847 (Tex. Crim. App. 1963); People v. Miranda, 744 P.2d 1127 (Cal. 1987). In all three cases, defense counsel moved for a mistrial or dismissal based on the spectator's comments to the jury.

5.   Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction.

Tex. R. Crim. Evid. 404(b).