Roy Glenn Adams v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00310-CR

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Roy Glenn Adams, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR98-088, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

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A jury found appellant Roy Glenn Adams guilty of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021 (West Supp. 2000). The district court assessed punishment at imprisonment for sixty years. We will affirm.

The complainant testified that she was awakened after midnight by someone pounding on her door. The person at the door was Adams, with whom the complainant had formerly been romantically involved. She admitted Adams, who told her that he had cut the telephone line. He then tied the complainant with rope he brought from the garage, threw her to the floor, and sexually assaulted her. After the assault, Adams took the complainant to the bedroom and tied her to the bed. He got a butcher knife from the kitchen, then laid down beside the complainant while holding the knife to her throat. The complainant managed to escape when Adams went to sleep and she made her way to a neighbor's house. The neighbor called the police, who found Adams asleep in the complainant's bed and arrested him.

Adams's first point of error complains of the admission in evidence of statements he made as he was being booked into jail. Two deputies testified that Adams said, "I'll be out in 45 days. Does that scare you?" and, "Tell [the complainant] next time she won't have time to call the cops." Adams objected that these statements were irrelevant and unfairly prejudicial. We review the district court's ruling for an abuse of discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).

In his brief, Adams first asserts that the statements were not res gestae and were therefore inadmissible. The term "res gestae" refers to evidence of other misconduct that is either indivisibly connected to the charged offense (same transaction contextual evidence) or that is helpful to the jury's understanding (background contextual evidence). See Mayes v. State, 816 S.W.2d 79, 86-88 (Tex. Crim. App. 1991). Character evidence is not admissible as background contextual evidence. See id. at 88; Tex. R. Evid. 404(b). If this is the argument Adams seeks to make, he waived it by failing to object on rule 404(b) grounds. See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (general relevance objection does not preserve rule 404 extraneous offense claim).

Adams also argues that the statements were not admissible under article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 2000). This contention was not preserved by a trial objection. Moreover, article 38.22, section 3 applies only to oral statements made during custodial interrogation, while the record reflects that Adams's statements were made spontaneously.

Adams makes no effort to demonstrate that his trial objections were erroneously overruled. The arguments he makes were not preserved. Point of error one is overruled.

Next, Adams contends the district court erroneously excluded certain testimony by a defense witness, William Dowda. Dowda, who was the complainant's companion from 1986 to 1993, would have testified that when their relationship ended, the complainant kept property belonging to him worth $35,000 and that she relinquished the property only after Dowda filed a lawsuit. Adams also contends he should have been permitted to cross-examine the complainant about this matter.

Adams argues that the proposed testimony was admissible to impeach the complainant. Except for criminal convictions, however, specific instances of conduct by a witness may not be inquired into on cross-examination or proved by extrinsic evidence for the purpose of attacking the witness's credibility. See Tex. R. Evid. 608(b). Adams supports his argument by citing rule 405, but this reliance is misplaced. See Tex. R. Evid. 405. Rule 405(a) permits an inquiry into specific instances of conduct during cross-examination of a character witness, but the complainant was not a character witness. Rule 405(b) permits proof of specific instances of a person's conduct when the person's character is an essential element of a charge or defense, but character as such is almost never an element of a charge or defense in a criminal case. See Tate v. State, 981 S.W.2d 189, 192 n.5 (Tex. Crim. App. 1998); Gilbert v. State, 808 S.W.2d 467, 471 n.5 (Tex. Crim. App. 1991). That the complainant kept property that was not hers to keep was not an essential element of any defense raised by Adams at trial.

Adams also argues that the proffered testimony was admissible to show the complainant's bias or motive for testifying as she did. See Tex. R. Evid. 613(b). The rules of evidence grant a party greater latitude to prove a witness's bias or motive than to prove a witness's untruthful character. See Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.--Austin 1996, pet. ref'd). Indeed, the rules place no limits on the sort of evidence that may be adduced to show a witness's bias or interest. See id.

Adams urges that "it was appropriate to argue to the jury that the complainant had a pattern of holding up property belonging to ex-lovers and therefore she could concoct testimony in order to justify her personal gain in not surrendering the property to the Appellant." The proffered testimony did not demonstrate any pattern of behavior by the complainant. There was no evidence that the complainant was attempting to keep property belonging to Adams, and therefore no basis for suggesting that her accusation against Adams was motivated by a desire for personal gain. To the contrary, Adams adduced testimony that, when their relationship ended, the complainant destroyed the property he left in her house.

The district court did not abuse its discretion by excluding Dowda's proffered testimony. Point of error two is overruled.

By his third point, Adams contends he was entitled to a jury instruction on the lesser included offense of sexual assault. See Tex. Penal Code Ann. § 22.011 (West Supp. 2000). A lesser included offense instruction is required if (1) the lesser offense is included within the proof necessary to establish the greater charged offense, and (2) there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Sexual assault unquestionably is included within aggravated sexual assault, and the dispositive question is whether there was evidence from which a rational jury could find that Adams, if guilty, was guilty only of the lesser offense.

The indictment alleged that, in the course of sexually assaulting the complainant, Adams threatened the complainant with death or serious bodily injury and used or exhibited a deadly weapon. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii), (iv) (West Supp. 2000). Adams concedes that the evidence establishes that he had nonconsensual intercourse with the complainant. But pointing to evidence that he and the complainant had a four-year relationship and that they had engaged in consensual sexual intercourse four days before the assault, he argues that "the jury could have concluded that it would not be necessary for the Appellant to use a deadly weapon or to [threaten death or serious bodily injury]." The relevant issue, however, is not the degree of force that might have been necessary, but the degree of force that was in fact used.

The complainant testified that appellant held a butcher knife to her throat; the police found a butcher knife on the floor beside the complainant's bed. The complainant testified that Adams bound her with a rope and choked her; the doctor who examined the complainant following the assault testified that he observed rope burns on her wrists and ankles, and small hemorrhagic spots on her face indicative of strangulation. There is no affirmative evidence that Adams did not use a deadly weapon or, by his actions, place the complainant in fear of death or serious bodily injury. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (charge on lesser included offense required only if evidence affirmatively raises issue). There being no evidence that would permit a rational jury to find that Adams was guilty only of sexual assault, the district court did not err by refusing the requested instruction. Point of error three is overruled.

Adams's fourth point of error is that the court should have instructed the jury on the mistake of fact defense. See Tex. Penal Code Ann. § 8.02 (West 1994). "It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense." Id. Adams argues that because of his long sexual relationship with the complainant, "it was reasonable for the Appellant to believe he could continue to have a sexual relationship with the complainant."

In a prosecution for aggravated sexual assault, evidence of the complaining witness's past sexual behavior with the accused may be relevant to the issue of whether the alleged victim consented to the charged sexual behavior. See Tex. R. Evid. 412(b)(2)(B). But Adams conceded at trial, as he does on appeal, that the sex act for which he was on trial was nonconsensual. Adam's prior relationship with the complainant could not support a reasonable belief that he could tie her hands and feet, throw her to the floor, and force his penis into her anus against her will. Point of error four is overruled.

Finally, Adams contends the district court erred by permitting him to be shackled during the trial. Before jury selection began, Adams objected that he was being forced to wear leg irons. To explain the leg restraints, the State offered the testimony of the jail administrator and a guard. The administrator testified that during Adams's pretrial incarceration, he had repeatedly threatened violence against himself or others, and that it had been necessary to place him in the "violent restraint cell" eight times. The guard testified that several months earlier, while being moved from one cell to another, Adams attempted to break free and enter the administrator's office. In the ensuing struggle, he struck a guard in the face. The record further reflects that skirts were placed around the counsel tables to hide the leg restraints from the jury. There is no evidence that any juror saw the restraints.

A trial court has the discretion to physically restrain a disruptive or violent defendant. See Culverhouse v. State, 755 S.W.2d 856, 859-60 (Tex. Crim. App. 1988). The record must affirmatively reflect sufficient reasons justifying the court's action. See id. at 860. Adams complains the district court did not make specific fact findings to justify the shackles. But in the absence of any showing that a juror saw the shackles, any error was harmless. See Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991). Point of error five is overruled.

The judgment of conviction is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: July 27, 2000

Do Not Publish

inant, Adams threatened the complainant with death or serious bodily injury and used or exhibited a deadly weapon. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii), (iv) (West Supp. 2000). Adams concedes that the evidence establishes that he had nonconsensual intercourse with the complainant. But pointing to evidence that he and the complainant had a four-year relationship and that they had engaged in consensual sexual intercourse four days before the assault, he argues that "the jury could have concluded that it would not be necessary for the Appellant to use a deadly weapon or to [threaten death or serious bodily injury]." The relevant issue, however, is not the degree of force that might have been necessary, but the degree of force that was in fact used.

The complainant testified that appellant held a butcher knife to her throat; the police found a butcher knife on the floor beside the complainant's bed. The complainant testified that Adams bound her with a rope and choked her; the doctor who examined the complainant following the assault testified that he observed rope burns on her wrists and ankles, and small hemorrhagic spots on her face indicative of strangulation. There is no affirmative evidence that Adams did not use a deadly weapon or, by his actions, place the complainant in fear of death or serious bodily injury. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (charge on lesser included offense required only if evidence affirmatively raises issue). There being no evidence that would permit a rational jury to find that Adams was guilty only of sexual assault, the district court did not err by refusing the requested instru