Kenneth Lee Polk v. State , 2012 Tex. App. LEXIS 2507 ( 2012 )

Affirmed and Opinion filed March 29, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00080-CR
NO. 14-11-00081-CR
KENNETH LEE POLK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause Nos. 1291662, 1291663
OPINION
Appellant Kenneth Lee Polk appeals his convictions for aggravated sexual assault
of a child, claiming the trial court reversibly erred in admitting into evidence the
testimony of two outcry witnesses and in denying appellant’s request to sequester the jury
after closing arguments. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by two separate indictments with two offenses of
aggravated sexual assault of a child: one indictment alleged contact with his eight-year-
old granddaughter’s anus; the second indictment alleged contact with the same
granddaughter’s sexual organ. Both offenses were alleged to have occurred during the
same episode. The primary offenses were each enhanced by a prior felony conviction.
Appellant pleaded “not guilty” to the charged offenses.
The cases were consolidated for trial. At a bench conference outside of the jury’s
presence, the State sought the trial court’s ruling on the proper outcry witness. The trial
court sustained appellant’s initial objection to a law enforcement officer as an outcry
witness. The State proffered in the alternative that the complainant’s adult brother could
testify as to outcry the complainant made to him about vaginal penetration, as alleged in
one indictment, and the complainant’s mother could testify about outcry the complainant
made to her about anal contact, as alleged in the second indictment. As reflected in the
record, appellant’s trial counsel initially agreed with the trial court’s assertion that there
are two separate events, and stated, “Sure they are. So you[’ve] got the brother and
you’ve got the mom from one event, the brother from one, you still don’t have law
enforcement.” The trial court ruled that the State could present the two outcry witnesses,
both the brother and mother, noting that there were two separate offenses. When
appellant was asked whether he objected to the brother and mother testifying as the two
outcry witnesses, appellant’s trial counsel replied, “No, Your Honor.”
The complainant’s brother testified that at his eighteenth birthday party, when the
complainant was thirteen years old, she confided in him that she had sex with someone
unwillingly. The complainant told her brother she had been sitting on a sofa in their
mother’s old house on Fleming Drive when appellant “touched” her. The brother learned
from the complainant that appellant laid on top of her, took her clothing off, and inserted
his “private” into her “private.” The complainant told her brother that she tried to stop
the conduct and that she bled afterwards.
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When the State sought to call the complainant’s mother to testify, appellant
objected to the mother’s testimony as a second outcry witness on the grounds that only
one incident happened and the brother already had testified as an outcry witness about the
single incident. The trial court overruled the objection, noting that the brother did not
testify about the alleged anal contact, and that a second outcry witness may testify about a
different charged offense. The trial court granted appellant’s request for a running
objection to the mother’s outcry testimony.
The mother testified that in 2003, when the complainant was eight years old, they
lived together in a home on Fleming Drive, and appellant lived with them. In 2009, the
complainant wrote letters to her mother claiming to have been molested by appellant in
the home on Fleming Drive. The complainant spoke with her mother and told her that
appellant laid on a sofa with her, started “grinding” on her, pulled her pants down, and
tried to put his penis in her “booty.” The mother initially understood the term “booty” to
mean the complainant’s “behind,” although she testified she was not sure. The mother
learned that appellant then covered the complainant’s mouth and attempted to “put it up
her front.”
The complainant testified that appellant lived with the family on Fleming Drive
when she was in third grade and eight years old; at that time, appellant slept on the sofa
in the living room. The complainant described how she and appellant were laying
together on the sofa when appellant started to “grind” on her and pulled her shorts and
underwear down. According to the complainant, appellant first tried to place his penis in
her “backside,” and then covered her mouth and put his “private” in her “front” and
moved it “in and out,” causing her pain.1 She was embarrassed by the incident and kept
it a secret until she confided in her brother and mother in 2009.
1
The record reflects that the complainant referred to her “backside” or “butt” as her buttocks
region, where she “poops” when she uses the restroom. The complainant clarified that she referred to
appellant’s penis as his “private” and that she used the terms “private” or “front” to refer to her vagina.
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Appellant testified and denied the allegations. He denied ever being alone with
the complainant.
After the jury had been charged and as the jury began deliberations, the defense
requested that the jury be sequestered for the night. The trial court denied the request,
admonished the jurors and reminded them not to speak with others about the case; the
trial court allowed the jurors to go home for the evening. On the following day, the jury
found appellant guilty of the charged offenses. After appellant pleaded “true” to the
enhancements, the trial court found the enhancements to be true and sentenced appellant
to twenty-three years’ confinement in each case, with the sentence to run concurrently.
Appellant now appeals.
ISSUES AND ANALYSIS
Did the trial court err in allowing testimony from two outcry witnesses?
In his first issue, appellant asserts the trial court reversibly erred in allowing both
the complainant’s mother and brother to testify as outcry witnesses because their
testimony was duplicative. With the exception of the word “booty,” as used by the
mother in testifying about the complainant’s outcry, appellant contends that the mother’s
testimony was identical to the brother’s testimony and should not have been admitted as
outcry testimony.
We review the trial court’s designation of an outcry witness under an abuse-of-
discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990);
Zarco v. State, 210 S.W.3d 816, 830 (Tex. App.—Houston [14th Dist.] 2006, no pet.). A
trial court’s designation of an outcry witness will be upheld when supported by the
evidence. See Garcia, 792 S.W.2d at 92. A trial court abuses its discretion when its
ruling is outside the zone of reasonable disagreement. See Zarco, 201 S.W.2d at 830.
Absent a clear abuse of discretion, a reviewing court will not disturb the trial court’s
ruling. See id.
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The State argues that appellant has failed to preserve this issue for appellate
review because appellant failed to assert a timely objection to the trial court’s designation
of the mother as a second outcry witness. The record reflects the trial court’s ruling
outside of the jury’s presence that both the mother and brother could testify as outcry
witnesses because two separate offenses were alleged, even though the offenses stemmed
from the same incident. When the trial court asked whether appellant objected to the two
outcry witnesses, appellant replied, “No, Your Honor.” Although, appellant affirmatively
stated he had no objection to the trial court’s initial ruling in designating both the mother
and brother as outcry witnesses on the separate charged offenses, appellant objected prior
to the mother’s testimony, and thus preserved error on this issue.
We now consider whether the trial court abused its discretion in admitting the
testimony of both the mother and brother as outcry witnesses. Under article 38.072 of the
Texas Code of Criminal Procedure, entitled “Hearsay Statement of Child Abuse
Victims,” some hearsay statements are admissible in prosecuting certain offenses,
including aggravated sexual assault of a child, as in this case. See Tex. Code Crim. Proc.
Ann. art. 38.072, § 1 (West 2011). The statute applies to “statements that describe the
alleged offense” and that (1) were made by the child against whom the offense allegedly
was committed and (2) were made to the first person, eighteen years of age or older, other
than the defendant, to whom the child made a statement about the offense. Id. § 2(a).
The statute has been construed to apply to the first adult to whom the complainant makes
a statement that in “some discernible manner describes the alleged offense.” See Garcia,
792 S.W.2d at 391. For the statute to apply, the statement must be more than words that
give a “general allusion” that something in the area of child abuse has occurred. Id.
Appellant does not dispute that the complainant’s adult brother was a proper
outcry witness; appellant contends that the trial court improperly allowed the mother’s
testimony as a second outcry witness because it was identical to the brother’s testimony.
Outcry testimony is specific to an event instead of “person-specific.” Broderick v. State,
35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref’d). More than one outcry
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witness may testify when the outcry statements are about differing events and not a
repetition of the same events. See Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App.
2011); Broderick, 35 S.W.3d at 74. As reflected in the record, the complainant made
detailed outcry to her adult brother about appellant’s contact with her vagina; the
complainant did not reveal to her brother that appellant also had touched her anus in the
same encounter. It was only during the complainant’s subsequent conversation with her
mother that the complainant first offered details about appellant’s contact with her anus.
See Divine v. State, 122 S.W.3d 414, 420 (Tex. App.—Texarkana 2003 (pet. ref’d)
(involving a child’s outcry to multiple people about differing acts stemming from the
same incident). It is therefore possible to have more than one outcry witness, as in this
case, because the outcry is about different events and different offenses. See id.; Josey v.
State, 97 S.W.3d 687, 693 (Tex. App.—Texarkana 2003, no pet.). The trial court’s
exercise of its broad discretion in admitting the mother’s testimony as a second outcry
witness concerning a different matter falls within the zone of reasonable disagreement;
we we will not disturb the ruling absent a clear abuse of discretion grounded in the
record. See Divine, 122 S.W.3d at 420. We overrule appellant’s first issue.
Did the trial court reversibly err in denying appellant’s request to sequester the jury
after the jury was charged?
In his second issue, appellant claims the trial court reversibly erred in denying his
request to sequester the jury. Article 35.23 of the Texas Code of Criminal Procedure,
entitled “Jurors May Separate,” provides in relative part:
The court on its own motion may and on the motion of either party shall,
after having given its charge to the jury, order that the jury not be allowed
to separate, after which the jury shall be kept together, and not permitted to
separate except to the extent of housing female jurors separate and apart
from the male jurors, until a verdict has been rendered or the jury finally
discharged. . . . In any case in which the jury is permitted to separate, the
court shall first give the jurors proper instructions with regard to their
conduct as jurors when separated.
Tex. Code Crim. Proc. Ann. art. 35.23 (West 2006). The defendant must either timely
file a motion to sequester or timely object to a request to separate to preserve for appeal a
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complaint that the trial court deprived the defendant of the right to have the jury
sequestered. See Sanchez v. State, 906 S.W.2d 176, 178 (Tex. App.—Fort Worth 1995,
pet. ref’d). When a defendant objects at the earliest possible opportunity, the request is
timely and the trial court must honor the defendant’s request. See id.
The record reflects that right after leaving the courtroom to begin deliberations,
the jury sent a note to the judge asking to separate for the evening and return the
following morning. The record reflects that the bailiff informed the trial court of the
jury’s request. Appellant’s request to sequester the jury immediately followed the jury’s
request. Appellant timely objected at the first possible opportunity after the jury was
charged. See Sanchez, 906 S.W.2d at 178. Given appellant’s timely request, the trial
court was required to sequester the jury. See Tex. Code Crim. Proc. Ann. art 35.23. We
conclude the trial court erred in failing to grant appellant’s request to sequester the jury.
A trial court’s error in failing to grant a party’s request to sequester a jury is a
violation of a statute and not a constitutional mandate. Campbell v. State, 189 S.W.3d
822, 826 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Although appellant claims the
error is reversible and that harm should be presumed,2 a violation of a statutory mandate
to sequester a jury is governed by Texas Rule of Appellate Procedure 44.2(b). Campbell,
189 S.W.3d at 826. Under this rule, any error, defect, irregularity, or variance, other than
constitutional error, that does not affect substantial rights must be disregarded. See Tex.
R. App. P. 44.2(b).
The record reflects that before allowing the jurors to separate for the evening, the
trial judge admonished them to avoid discussing the case with others. The judge
2
To the extent appellant relies upon Hood v. State, 828 S.W.2d 87 (Tex. App.—Austin 1992, no
pet.), to show reversible error, the majority in Hood relied upon cases that (1) were decided under former
Rule 81(b)(2) involving only a single harm standard, and (2) have been severely undermined by Cain v.
State, 947 S.W.2d 262 (Tex. Crim. App. 1997). See Cain, 947 S.W.2d at 264 (holding that “except for
certain federal constitutional errors labeled by the Supreme Court as ‘structural,’ no error whether it
relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically
immune to a harmless error analysis.”); Campbell v. State, 189 S.W.3d 822, 825 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (distinguishing Hood and applying harmless-error analysis under Rule 44.2 to a
trial court’s denial of a timely request to sequester).
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reminded the jurors that they could not deliberate with others outside of the courtroom
and cautioned them to avoid being influenced by others. The judge reminded the jurors
that they could only consider evidence from the witness stand and they may not bring in
outside information. Nothing in the record reflects that the jury failed to follow these
instructions. Nor does the record indicate any other harm flowing from allowing the
jurors to separate. The trial court’s error in allowing the jury to separate during
deliberations did not affect a substantial right and was harmless error. See Campbell, 189
S.W.2d at 826; see also Tex. R. App. P. 44.2(b). We, therefore, overrule appellant’s
second issue.
The trial court’s judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
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