Ron Jason Dunn v. State ( 2003 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00019-CR

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RON JASON DUNN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 8th Judicial District Court

Hopkins County, Texas

Trial Court No. 0216601

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Ron Jason Dunn appeals from his conviction by a jury for the offense of aggravated sexual assault on a child. The court assessed his punishment at life imprisonment. Four cases, each involving three counts, were tried together. The cases have been appealed separately and have been briefed together.

          Because the briefs and arguments raised therein are identical in all four appeals, for the reasons stated in Dunn v. State, No. 06-03-00017-CR (Tex. App.‒Texarkana Oct. 31, 2003, no pet. h.), we likewise resolve the issues in this appeal in favor of the State.

          We affirm the judgment of the trial court.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      October 20, 2003

Date Decided:         October 31, 2003

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The indictment charged Waller with the aggravated robbery of McPherson, a disabled individual, on or about August 10, 2002. Bruce E. Williams testified McPherson is mentally challenged. Jerome Williams gave Waller a ride to McPherson's house August 10, but originally waited in the car. McPherson testified Waller then asked to borrow some money. McPherson refused, and a struggle ensued. McPherson testified Waller turned him around and took his wallet out of his back pocket and removed money. During the struggle, McPherson was scratched on the ear and neck, and placed in imminent fear of bodily injury. McPherson testified Waller took $25.00 dollars from him.

Competency to Testify

            Waller's first point of error contends the trial court abused its discretion by finding McPherson competent to testify. For the sake of convenience, we have categorized Waller's challenges under three theories. First, we will address whether McPherson understood the moral obligation to tell the truth. Second, whether McPherson's inability to relate when past events occurred rendered him incompetent will be examined. Last, we will examine whether McPherson's occasional confusion rendered him incompetent to testify.

            The determination of the competence of a witness to testify is within the sound discretion of the trial court, and we review the trial court's ruling on an abuse of discretion standard. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). The Texas Rules of Evidence create a presumption that a person is competent to testify. Hollinger v. State, 911 S.W.2d 35, 39 (Tex. App.—Tyler 1995, pet. ref'd); Reyna v. State, 797 S.W.2d 189, 191 (Tex. App.—Corpus Christi 1990, no pet.); Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd); see Tex. R. Evid. 601(a)(2).

            In determining whether a witness is competent to testify, the trial court should consider the witness' capacity to observe intelligently at the time of the events in question, capacity to recollect the events in question, and capacity to narrate. Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. [Panel Op.] 1980); Hollinger, 911 S.W.2d at 39; Rodriguez, 772 S.W.2d at 170; Handel v. Long Trusts, 757 S.W.2d 848, 854 (Tex. App.—Texarkana 1988, no pet.). "If a person afflicted with a physical or mental disability possesses sufficient intelligence to receive correct impressions of events he sees, retains clear recollection of them and is able to communicate them through some means, there is no reason for rejecting his testimony." Watson, 596 S.W.2d at 870–71; Rodriguez, 772 S.W.2d at 170.

            Waller argues McPherson could not possibly understand and appreciate the consequences of lying if he could not define the word. However, as Waller correctly acknowledges, a witness is no longer required to understand the obligation of the oath in order to be found competent. "The current rule regarding competency of witnesses is virtually identical to its predecessor. Tex. Crim. Proc. Code Ann. art. 38.06, which it replaces, with the exception that there is no longer a requirement that the court find a child or other person whose competency is challenged understands 'the obligation of an oath.'" Rodriguez, 772 S.W.2d at 170. The witness, though, must understand the moral obligation to tell the truth. "The capacity to narrate involves on the one hand, both an ability to understand the questions asked and to frame intelligent answers and, on the other hand, a moral responsibility to tell the truth." Watson, 596 S.W.2d at 870; see Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000). Stated another way, "[t]he Court must simply impress on her mind the duty of being 'truthful.'" Dufrene v. State, 853 S.W.2d 86, 88 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd); Gonzales v. State, 748 S.W.2d 510, 512 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd). Therefore, in order to be competent, McPherson must understand the moral responsibility to tell the truth.

            After the jury was sworn, but before Waller pled, the trial court held a hearing at Waller's request on McPherson's competency to testify. Based on some of McPherson's responses, Waller argues McPherson could not understand and appreciate the consequences of lying, particularly since McPherson had difficulty defining the truth and a lie. On direct examination, the State asked McPherson:

Q.If I said that this pen is blue, is this pen blue?

                        A.        Uh-huh.

                        Q.        Is that the truth or a lie?

                        A.        Truth.

                        Q.        Okay. If I said, Billy, this pen is red - -

                        A.        Lie.

                        . . . .

Q.All right. And you understand you're under oath? You go to church; is that right?

                        A.        Uh-huh.

                        Q.        And what happens to you if you tell lies?

                        A.        Then - - then - -

                        Q.        It's not good to lie, is it? Or is it good to lie?

                        A.        No.

                        Q.        It's not good, is it?

                        A.        No.

However, on cross-examination, McPherson had trouble defining what the words truth and lie mean to him. Although McPherson had difficulty defining truth and lying in the abstract, he demonstrated he understood the difference in application. McPherson recognized that describing a blue pen as blue was telling the truth and that describing a blue pen as red was a lie. Just because he was unable to abstractly define what truth means does not defeat the fact that he understood what was the truth in application. Further, McPherson acknowledged it was not good to lie. McPherson sufficiently understood what truth means and recognized he had a moral obligation to tell the truth.

            Next, Waller contends McPherson's inability to relate when certain events occurred rendered him incompetent as a witness. In his testimony at trial, McPherson had trouble differentiating time-related events, such as how many days or years ago events occurred.

            Part of Waller's argument rests on McPherson's tendency to state that events occurred "last night" when they clearly did not. At one point, McPherson said Waller raped his mother "last night." At another point in his testimony, McPherson stated the police first interviewed his mother last night. Waller contends these events obviously did not occur last night. Last, McPherson stated Waller had come over to his house "last night," even though he had been in jail for several months.

            Besides the "last night" errors, McPherson made two other time-related mistakes. On direct examination, McPherson testified he had worked at Piggly-Wiggly for "ten days." However, McPherson testified on cross-examination he had worked at Piggly-Wiggly for "ten years." The State argues McPherson was simply "confusing the word days for years." McPherson testified his mother and grandmother were about the same age.

            Waller argues the above mistakes indicate McPherson did not have the capacity to relate past events. Even if McPherson's mistakes were not solely attributable to nervousness, they do not necessarily render him incompetent. While the mistakes create significant doubt as to when the argument occurred, it does not logically preclude the fact the incident occurred at some point. As discussed above, other evidence proves Waller and McPherson argued on or about August 10, 2002. McPherson's testimony concerning the fight has adequate detail and coherency to render him competent.

            Waller contends the current situation is analogous to the situation in Rhea v. State, 705 S.W.2d 165 (Tex. App.—Texarkana 1985, pet. ref'd). Unlike Rhea, most of McPherson's answers were not "uh-huh." See id. at 167–70. Further, Rhea was based in part on a finding that the witness did not understand the obligation of the oath. Id. A witness is no longer required to understand the obligation of the oath, but rather only to understand the moral obligation to tell the truth. Although McPherson's testimony indicates some doubt as to when the events occurred, his inability to relate the precise timing of the said events does not necessarily render him incompetent. McPherson indicated a capacity to relate past events, even though his testimony may be doubted as to when they occurred. The time-related mistakes relate to credibility, on which we must defer to the jury's determination.

            In his remaining argument, Waller contends McPherson's testimony concerning the police reports was so inconsistent that it renders him incompetent. Among other arguments, Waller points to the fact McPherson testified he wrote one of the reports and read the other report, even though he testified he could not read. However, McPherson demonstrated some reading ability later in the proceeding. Waller argues that the conduct indicates McPherson could not observe, recollect, and narrate consistent past events. At most, this conduct demonstrates inconsistent testimony, which is a credibility issue for the jury's determination. We cannot conclude the trial court abused its discretion.

            In determining whether there has been an abuse of discretion, an appellate court must review the entire testimony of a witness. Woods v. State, 14 S.W.3d 445, 451 (Tex. App.—Fort Worth 2000, no pet.); Dufrene, 853 S.W.2d at 88; Reyna, 797 S.W.2d at 191. Most of McPherson's testimony at trial involved several sentences and an adequate description of the events. Inconsistencies and conflicts in a witness' testimony does not automatically rule him or her incompetent; rather, they are simply factors affecting the weight of the witness' credibility. Woods, 14 S.W.3d at 451; see Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—Amarillo 1995, pet. ref'd). While McPherson's testimony did contain inconsistencies, such considerations relate to the weight and credibility of the testimony and are the province of the jury.

            The trial court found McPherson competent to testify. McPherson indicated a knowledge of what truth was at least in application and indicated that lying was wrong. McPherson's testimony contained adequate detail and narration. We hold that the trial court did not abuse its discretion.

Sufficiency of the Evidence

            In his second point of error, Waller contends there is insufficient evidence to support his conviction because McPherson was incompetent to testify. As discussed above, the trial court did not abuse its discretion in finding McPherson competent to testify. While McPherson's testimony and the police report introduced into evidence are the only evidence a robbery actually occurred, there is sufficient corroborating evidence for a rational juror to rely on McPherson's testimony. The combination of McPherson's testimony and the corroborating evidence provides legally sufficient evidence to support the verdict.

            In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

            Waller was charged with the offense of aggravated robbery. Section 29.03 of the Texas Penal Code provides that a person commits aggravated robbery if "he commits robbery as defined in Section 29.02," and he "causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is: . . . a disabled person." Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003). Section 29.03(c) defines "disabled person" as "an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm." Tex. Pen. Code Ann. § 29.03(c) (Vernon 2003).

            The indictment required the State to prove that Waller intentionally or knowingly threatened or placed McPherson in fear of imminent bodily injury or death while in the course of committing theft and that McPherson was a disabled person.

            Sufficient evidence exists which would allow a rational juror to find all the essential elements of robbery beyond a reasonable doubt. McPherson testified Waller turned him around and took his wallet out of his back pocket and removed money. McPherson's testimony is corroborated by other evidence that indicates an argument occurred between Waller and McPherson on or about August 10, 2002. Jerome Williams gave Waller a ride to McPherson's house that night, but waited in the car. McPherson's mother testified that, when she came into the room, Waller and McPherson were "fighting." Jerome Williams testified that, after hearing "a little argument" while he was waiting outside, he went into the house and observed Waller and McPherson arguing. The police report, which was introduced into evidence, states the robbery occurred on or about August 10, 2002. Evidence existed that McPherson was placed in fear of imminent bodily injury. Last, evidence was introduced that McPherson is disabled.

            McPherson's testimony, combined with the corroboration of the other witnesses, provides sufficient evidence to allow a rational juror to find all the essential elements of the crime beyond a reasonable doubt. Therefore, there is legally sufficient evidence to support the jury's verdict.

            For the reasons stated, we affirm the judgment of the trial court.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          January 8, 2004

Date Decided:             January 14, 2004

Do Not Publish