Richard Allen Click v. State ( 2005 )

NO. 07-04-0103-CR
NO. 07-04-0117-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 22, 2005
______________________________
RICHARD ALLEN CLICK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF ARMSTRONG COUNTY;
NOS. 1016 & 1017; HONORABLE HAL MINER, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Following pleas of not guilty, appellant Richard Allen Click was convicted by a jury
of sexual assault of a child in cause numbers 1016 and 1017. Punishment was assessed
at cumulative sentences of 20 years confinement. Presenting two points of error, appellant
questions whether (1) service of the indictment by a uniformed sheriff’s deputy in the
presence of the venire panel subverted his presumption of innocence, and (2) pursuant to
article 38.072 of the Texas Code of Criminal Procedure, outcry statements of the alleged
victims were proper. We affirm.
Only a brief recitation of the facts is necessary as there is no challenge to the
sufficiency of the evidence to support appellant’s conviction. Appellant is the biological
father of victims A.C. and B.C. When B.C. was 14 years old, she confided incidents of
sexual molestation committed by appellant against her to Jacqueline Huntington, a friend.
At age 16, A.C. also told Jacqueline of acts of sexual abuse performed on her by appellant,
including sexual intercourse.
By his first point, appellant maintains he was deprived of the right to a fair trial
because the presumption of innocence was subverted when he was served with the
indictment by an arm ed and uniformed deputy sheriff in the presence of the venire panel.
We disagree.
By supplemental brief the State withdraws its assertion raised in its original brief that
the record does not support service of the indictments in the presence of the venire panel
and concedes appellant was served by a uniformed deputy sheriff in the presence of the
venire panel. However, the State holds firm to its original contention that appellant’s
complaint is not preserved for review.
Appellant acknowledges he found no cases in support of his argument. However,
relying on Randle v. State, 826 S.W.2d 943, 946 (Tex.Cr.App. 1992), and Scott v. State, 80
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S.W.3d 306, 308-09 (Tex.App.–Fort Worth 2002, no pet.), he analogizes his complaint to
cases where the presumption of innocence was impaired when a defendant appeared for
trial in jail apparel. He argues that any indicia of guilt subverts the presumption of
innocence. He further argues that impingement on his presumption of innocence is error
of constitutional magnitude that requires review for harm under Rule 44.2(a) of the Texas
Rules of Appellate Procedure.
As a prerequisite for appellate review, a defendant must make a timely request,
objection, or motion stating the grounds with sufficient specificity to apprise the trial court of
the complaint and obtain an adverse ruling. See Tex. R. App. P. 33.1(a). See also Martinez
v. State, 91 S.W.3d 331, 337 (Tex.Cr.App. 2002) (discussing application of the “raise-it-or-
waive-it” forfeiture rule). Additionally, the objection at trial must comport with the complaint
on appeal. Trevino v. State, 991 S.W.2d 849 S.W.2d 854-55 (Tex.Cr.App. 1999); Goff v.
State, 931 S.W.2d 537, 551 (Tex.Cr.App. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct.
1438, 137 L. Ed. 2d 545 (1997).
The defendants in the cases relied on by appellant preserved their complaints for
review. In Randle, counsel objected to his client being placed before the jury in jail clothes,
and in Scott, a motion for continuance was presented requesting additional time to secure
appropriate clothing. Both courts found the presumption of innocence had been subverted
by requiring the defendants to proceed to trial in jail-issued garb.
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In the instant case, the record reflects that after dispensing with pretrial motions and
shortly before beginning voir dire, defense counsel announced to the trial court:
[t]he sheriff just served my client with a copy of the indictment, and there is a
statutory period of presentation required, prior service of an indictment before
you go to trial. And what I’m showing you, Judge, what I have just been
served is a precept to serve copy of indictment . . . .
A brief discussion ensued on whether service of the indictment had been waived because
it had not been raised during pretrial hearings. Counsel objected to any prior hearings on
the ground he was not representing appellant at that time. No objection, however, was
raised on impingement of appellant’s presumption of innocence. W e conclude appellant’s
complaint was not preserved for appellate review.1 Point of error one is overruled.
By his second point of error, appellant contends the use of hearsay statements of the
child victims by outcry witness Jacqueline Huntington was improper under article 38.072 of
the Texas Code of Criminal Procedure Annotated (Vernon 2005). Section 1 of article 38.072
provides for application of the article to a proceeding in the prosecution of an offense under
certain provisions of the Penal Code if committed against a child 12 years of age or younger.
Specifically, appellant asserts the victims were above age 12 at the time of the charged
offenses making article 38.072 inapplicable. We agree the statute was not implicated, but
for the following reasons, overrule appellant’s contention.
1
Service of an indictment is not evidence of guilt. See Tex. Code Crim. Proc. Ann.
art. 38.03 (Vernon Supp. 2004-05). See also Harris v. State, 475 S.W.2d 922, 924
(Tex.Cr.App. 1972).
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A.C. testified that when she was 11 or 12 years old, appellant began molesting her
by rubbing her private parts and digital penetration. At age 13, the abuse escalated to
biweekly sexual intercourse until she was 16. Appellant was indicted in cause number 1016
for intentionally and knowingly causing penetration by his sexual organ of A.C.’s sexual
organ. He was not, however, indicted for acts of indecency with her or penetration by his
finger when she was 12 years of age or younger.
B.C.’s testimony reflects that when she was ten or 11 years old, appellant began
touching her inappropriately and would frequently ask if he could see whether her breasts
were developing and whether he could feel her vaginal area for pubic hair growth. She
began to fear appellant and refused his advances. When she was 14 and refused to
cooperate, appellant threw her down on her bed with enough force to break it, secured her
hands over her head with one of his hands, and with his free hand pulled her shorts and
underwear down and inserted his finger into her vagina. He was indicted in cause number
1017 for intentionally or knowingly causing penetration of B.C.’s sexual organ by means of
his finger, but was not indicted for indecency with her for incidents that occurred when she
was 12 years old or younger.
Both victims confided the acts of sexual abuse to Jacqueline Huntington and she was
designated as an outcry witness under article 38.072. An outcry witness is the first adult to
whom the child victim makes a statement about the offense. See Tex. Code Crim. Proc.
Ann. art. 38.072, § 2(a)(2). An outcry statement is an exception to the hearsay rule of
exclusion. Dorado v. State, 843 S.W .2d 37, 38 (Tex.Cr.App. 1992) (en banc).
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Article 38.072 applies to prosecutions of certain offenses com mitted against a child
12 years old or younger. The victim’s age when the offense is committed triggers whether
the statute will apply, not the victim’s age at the time the outcry statement is made. See
Harvey v. State, 123 S.W.3d 623, 627-29 (Tex.App.–Texarkana 2003, pet. ref’d). The
evidence is uncontradicted that the charged offenses in the underlying cases occurred when
both victims were older than 12. Thus, we conclude article 38.072 does not apply and
Jacqueline’s testimony was not admissible as outcry evidence.2
The State contends appellant waived his complaint. When Jacqueline was testifying
defense counsel lodged the following objection, “Your, Honor, I’m going to object at this
point unless this witness has been identified as the outcry witness. This is a hearsay
statem ent.” Appellant’s complaint on appeal is improper application of article 38.072 due
to the victims’ ages. We agree the complaints are not similar, but a general hearsay
objection is sufficient to preserve a complaint that proffered outcry statements are
inadmissible hearsay. See Lankston v. State, 827 S.W.2d 907, 910-11 (Tex.Cr.App. 1992);
Mosley v. State, 960 S.W .2d 200, 203 (Tex.App.–Corpus Christi 1997, no pet.).
The State suggests by footnote that the victims’ hearsay statements may have been
admissible under Rule 803(24) of the Texas Rules of Evidence as statements against
[social] interest. We acknowledge that a trial court’s ruling on admissibility of evidence will
2
Our conclusion pretermits a discussion of appellant’s complaint that he was denied
a reliability hearing under section 2(b)(2) of the statute. Moreover, appellant did not object
to the trial court’s failure to conduct a reliability hearing, which is a prerequisite for appellate
review. Diaz v. State, 125 S.W.3d 739, 743 (Tex.App.–Houston [1st Dist.] 2003, pet. ref’d).
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be sustained if it is correct on any theory of law even if the wrong reason is given; Harvey,
123 S.W.3d at 630; however; a less burdensome analysis is to resolve appellant’s complaint
by conducting a harm analysis on improper admission of the statements.
Improper admission of hearsay evidence is non-constitutional error reviewed for harm
under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State, 967
S.W.2d 410, 417 (Tex.Cr.App. 1998). See also Dunn v. State, 125 S.W.3d 610, 614-15
(Tex.App.–Texarkana 2003, no pet.). We disregard the error as harmless if it does not affect
appellant’s substantial rights. See Tex. R. Evid. 103(a). Error in admission of improper
outcry statements is harmless when other properly admitted evidence establishes the same
facts. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Cr.App. 1999), cert. denied, 528 U.S. 956,
120 S. Ct. 384, 145 L. Ed. 2d 300 (1999); Thomas v. State, 1 S.W.3d 138, 142
(Tex.App.–Texarkana 1999, pet. ref’d).
Jacqueline’s testimony concerning the victims’ statem ents was vague regarding the
specific acts of sexual abuse. It established how the abuse surfaced when A.C. realized
appellant might be committing acts against her younger sister, B.C. A.C. recounted the
abuse she suffered to B.C., which caused her to become extremely upset. B.C. went to the
diner where Jacqueline worked and confided that appellant had touched her private parts
inappropriately. Jacqueline telephoned A.C. to come to the diner and discuss the matter.
After more details were disclosed, Jacqueline called the victims’ mother and the sheriff.
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More explicit facts were testified to by A.C. and B.C. than those offered by
Jacqueline. A.C. testified that appellant began molesting her by rubbing her arms, stomach,
and private parts both over and under her clothes. He also penetrated her with his finger.
When she was 13 he began rubbing her and then said he wanted to try something else that
would not hurt her. He pulled her pants and underwear down and laid on top of her and had
sexual intercourse with her. She testified she was scared and that appellant required her
to have sex with him as a condition of being allowed to see her boyfriend.
B.C. testified she began to fear appellant when she was in the fourth grade. He
would repeatedly ask to see her breasts and check for pubic hair growth. He heeded her
refusals until she was 14 when he threw her down on her bed and forcibly penetrated her
with his finger. Given the testimony of A.C. and B.C., Jacqueline’s testimony is rendered
harmless. Point of error two is overruled.
Accordingly, the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
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