Shaun Paul Murray v. State ( 2014 )

Affirmed and Opinion Filed this 10th day of June, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00484-CR
SHAUN PAUL MURRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80483-2012
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang-Miers
Opinion by Justice Francis
A jury convicted Shaun Paul Murray of continuous sexual abuse of a young child and
two counts of aggravated sexual assault of a child under six. After finding appellant was
previously convicted of indecency with a child, the jury assessed punishment at life in prison on
each charge. In two issues, appellant contends the trial court improperly allowed an undisclosed
witness to testify and his convictions for aggravated sexual assault of a child violate his right
against double jeopardy. For the reasons set out below, we overrule appellant’s issues and affirm
the trial court’s judgments.
Briefly, the evidence showed the following. Appellant began babysitting M.R. in about
March or April 2011 when M.R. was three years old. Soon after, M.R.’s mother, Cassie, noticed
changes in her behavior. M.R. began acting out more, drawing on the walls, and throwing baby
powder everywhere. Mentally, M.R. became “more hyper” and “more agitated at things.”
Physically, M.R. complained that her “front area and back area” hurt. In November or
December 2011, appellant called Cassie and told her M.R. “just sat down and peed on herself.”
M.R. was potty-trained, so the incident disturbed Cassie, who had been sexually abused as a
child. Cassie took M.R. to the emergency room at Children’s Hospital, where she was referred
to the REACH Clinic for an appointment with a specialist. In addition, M.R. was referred to the
Children’s Advocacy Center.
At the advocacy center, M.R. was interviewed by Janetta Michaels. Michaels testified
that during the interview, M.R. told her that appellant touched her “front and back private parts.”
M.R. said it “tickled” when he touched her backside but hurt when he touched the front side.
M.R. also said appellant made her put her mouth on his penis and demonstrated for Michaels
what she was made to do.
The following week, M.R. was examined by a physician at the REACH Clinic. The
examination revealed that her urethra, hymen, vagina, and area behind the vagina was red and
swollen. The physician said the condition, vaginitis, was common in young girls and could be
caused by a lack of hygiene but was also indicative of sexual abuse.
M.R. also testified at trial. She said appellant touched her with his hand on her “special
spot,” which is where she goes to the bathroom. She said this happened about “fifty times.”
Sometimes his hand moved when he touched her and sometimes it stayed still. She also recalled
one time that appellant licked her “front butt” with his tongue.
Finally, M.R.’s former babysitter, Taylor Fowler, testified she relieved appellant of
babysitting duties in the afternoons. Most of the time, she said, M.R. would not have any clothes
on or her diaper would be “on backwards or not on all the way.” Appellant told Fowler that
M.R. took off her clothes and he could not get her to put them back on. Fowler said she would
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tell M.R. to put on her clothes, and M.R. did. Fowler said she had relieved other people who
babysat M.R., such as M.R.’s grandmother, and M.R. would not be in the same state of dress.
Also, Fowler testified she noticed a few times, after taking over for appellant, that M.R.’s front
and back private areas were red when she bathed her.
Appellant was indicted on charges of continuous sexual abuse of a child occurring during
the period of June 20, 2011 through November 20, 2011, and two counts of aggravated sexual
assault of a child under the age of six occurring on or about December 1, 2011. After hearing the
evidence, the jury convicted appellant of all charges.
In his first issue, appellant argues the trial court abused its discretion by allowing Fowler
to testify when she was not disclosed on the State’s witness list. He contends he had no notice of
the witness and was “incapable of fairly meeting and rebutting” her testimony.
Upon request by the defense, notice of the State’s witnesses should be given. Stoker v.
State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), abrogated on other grounds, Horton v.
California, 496 U.S. 128 (1990). We note the record does not contain a request by appellant for
the State’s witness list. Regardless, if a witness’s name is not disclosed to a defendant before
trial despite a court order, any error in allowing that witness to testify over a claim of surprise is
“made harmless” by the defendant’s failure to object or move for a continuance. Barnes v. State,
876 S.W.2d 316, 328 (Tex. Crim. App. 1994).
In Barnes, the appellant argued the trial court erred in allowing three punishment-phase
witnesses to testify even though their names were not on the State’s witness lists. The appellant
objected at trial but failed to move for a continuance in order to interview the witnesses or
determine the matters about which they were to testify. Barnes, 876 S.W.2d at 328. The court
concluded that because appellant did not seek a continuance, he “cannot now be heard to
complain.” Id.
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Here, appellant objected at trial but did not move for a continuance. Under these
circumstances, we conclude appellant cannot complain on appeal. Id.; Mapps v. State, No. 05-
10-00581-CR, 2011 WL 2507835, at *2 (Tex. App.—Dallas June 24, 2011, no pet.) (mem. op.).
We overrule the first issue.
In his second issue, appellant argues his convictions for aggravated sexual assault of a
child are barred by double jeopardy. His entire issue is briefed in five sentences and, other than
cursory citations to two cases, fails to set out the applicable law or provide any analysis. We
therefore overrule the issue as inadequately briefed. See TEX. R. APP. P. 38.1.; see Russeau v.
State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005).
We affirm the trial court’s judgments.
Do Not Publish /Molly Francis/
TEX. R. APP. P. 47 MOLLY FRANCIS
130484F.U05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHAUN PAUL MURRAY, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-13-00484-CR V. Trial Court Cause No. 401-80483-2012.
Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee Justices Bridges and Lang-Miers
participating.
Based on the Court’s opinion of this date, the trial court’s judgments on Counts I, II, and
III are AFFIRMED.
Judgment entered this 10th day of June, 2014.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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