Meador, Tony Lee v. State ( 2003 )

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Opinion issued May 8, 2003.



  In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00505-CR

NO. 01-02-00506-CR

TONY LEE MEADOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 889329 & 896471

MEMORANDUM OPINION

          Appellant, Tony Lee Meador, was charged in two indictments with felony sexual assault of a child. The first indictment alleged that, on or about May 15, 1998, appellant caused the penetration of the female sexual organ of a person younger than 14 years of age with his sexual organ, while the second indictment alleged that, on or about January 1, 1991, appellant caused the sexual organ of a person younger than 14 years of age to contact his mouth. A jury found appellant guilty of both charges and assessed punishment at 60 years’ and 30 years’ imprisonment. In seven points of error, appellant challenges his convictions.

          Appellant challenges his conviction by raising seven points of error. In his first and second points of error, appellant alleges that the trial court committed reversible error when it allowed both the trial and the punishment phase to proceed with only 11 jurors. Appellant’s third and fourth points of error allege that the trial court committed reversible error when it entered verdicts at the guilt and punishment stages that had not been signed by all 11 jurors. Appellant’s fifth point of error alleges that the trial court erroneously instructed the jury that the State was not bound by the specific dates of the offenses as they were alleged in the indictments. Appellant’s sixth point of error contends that the trial court erred when it admitted the testimony regarding appellant’s suitability for probation. Finally, appellant’s seventh point of error alleges that the trial court erred when it failed to grant a mistrial after the State improperly urged the jury during the punishment phase to assess 10 years’ imprisonment for “each time [appellant] raped his daughter.” We affirm.

Background

          Appellant was charged in two indictments with sexual assault of his daughter.

On the Friday before appellant’s trial began on Monday, a jury of 12 jurors was selected but not sworn. When the jurors reassembled on Monday morning, one of the prospective jurors notified the trial judge that she had been sexually assaulted as a child. The trial judge observed that, in light of the juror’s demeanor, it was unlikely that she would be able to consider herself a fair juror. The judge accordingly informed appellant that he had a right to proceed with a jury of 12 jurors if he chose to. However, the trial judge also informed appellant that, because the pool of venire members from which the current jurors had been drawn was already discharged, if appellant elected to have a jury of 12, it would delay the start of the trial by several days. The record contains the following exchange between the trial judge and appellant:

[Trial Judge:] Mr. Meador, I think you’ve indicated—please, maybe you should discuss this yourself—that you would desire or are willing to proceed with the 11 people minus [the juror]; is that correct?

[Appellant:] Yes, yes.

[Trial Judge:] That’s what you would like?

[Appellant:] Yes, proceed.

          During the trial, T.M. testified that her father had repeatedly sexually assaulted her. She stated that appellant began abusing her in 1987, when she was three years old and that the sexual abuse continued, in various forms, until 1999, when she was 14 years old. Although she could not remember specific dates of the incidents, T.M. stated that appellant had put his mouth on her vagina repeatedly when she was between the ages of three and eight years old, and that he put his penis into her vagina at least 25 times when she was between the ages of eight and 14 years old. In addition, T.M. estimated that her father had fondled her vagina at least 30 times.

          The State presented a videotaped recording of a non-custodial interview appellant had with a Houston Police officer at the Children’s Assessment Center in Houston. In the videotaped interview, appellant admitted that he had sexually assaulted his daughter. Appellant specifically admitted that, in 1991, he had put his penis into his daughter’s vagina for the first time and that he had put his mouth on his daughter’s vagina during that year. Appellant contended that 1996 had been the last he had “messed with” his daughter.

          After the State published appellant’s videotaped statement, appellant requested an instruction from the trial court regarding extraneous offenses outside the indictment. The trial court accordingly gave the jury an instruction on extraneous offenses. After the State presented all of its evidence, appellant requested an election from the State of which of the numerous times appellant assaulted his daughter the prosecution would choose to proceed. The State affirmed its intention to proceed on the dates and incidents alleged in the indictments. At the close of evidence, the trial court issued a charge to the jury notifying the jury that the State was not bound by the specific dates alleged in the indictment. Instead, the trial court informed the jury that “a conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations.” Appellant made no objection to the charge.

          The jury returned a verdict of guilty on both indictments. The court read both verdict forms aloud, noted that both the verdict forms were signed by the foreman of the jury only, and proceeded to poll the jury. Appellant made no objection to the verdict forms.

          During the punishment phase, the State presented the testimony of Dr. Jennifer Welch, as an expert on the treatment of sex offenders. Dr. Welch described the options for treatment of sex offenders offered at the Children’s Assessment Center in Houston and discussed the standard treatment approach for sex offenders. Dr. Welch emphasized the importance of sex offenders admitting their past crimes, and she stated that sex offenders who were in denial about their crimes were more difficult to treat than those who were not. During cross-examination, appellant’s counsel inquired whether the conditions imposed on sex offenders during probation, specifically the sex offender treatment program mandated as a condition of probation, might aid in an offender’s recovery. Dr. Welch was cross-examined at some length about the specific conditions imposed upon sex offenders during probation and what the overall effects of these conditions might be on a convicted sex offender’s treatment. In addition, appellant’s counsel inquired about the incidence of initial denial among convicted sex offenders. Dr. Welch testified that denial was very common and that it was something she and other treatment providers were accustomed to confronting. Dr. Welch testified that a sex offender still in denial during probation would be less likely to be able to successfully follow the conditions of probation.

          In its final argument, the State addressed the possible ranges of punishment for the two guilty verdicts the jury had returned. The prosecutor, in discussing the appropriate punishment for appellant’s crimes, stated, “Well, I say that you should assess 10 years for each time that he raped his daughter.” Appellant’s counsel objected to the statement. Appellant’s objection was sustained, and the trial court instructed the jury to disregard the prosecutor’s statement and not to consider it for any purpose. Appellant moved for a mistrial, and the trial court denied the motion. The jury assessed punishment at 60 years’ and 30 years’ imprisonment. When the jury form was returned in the punishment phase, the court again noted that the form was signed only by the foreman and accordingly polled the jury. Appellant made no objection. After the jury was excused, the trial court asked appellant whether there was any reason it should not pronounce sentence against him. Appellant answered that there was not.

Analysis

Eleven-Person Jury

          In his first and second points of error, appellant argues that the trial court committed reversible error when it allowed the jury to proceed with only 11 jurors. Appellant contends that the trial court erred by dismissing the juror sua sponte, and that appellant’s oral waiver of his right to a 12-member jury was invalid and involuntary.

          A defendant may waive the right to a jury composed of 12 persons in the same way that a defendant may waive, in entirety, the right of trial by jury. Maten v. State, 962 S.W.2d 226, 228 (Tex. App.—Houston [1st Dist.] 1998). See also Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp. 2003) (allowing waiver of a jury in a non-capital prosecution where waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State”). Appellant’s oral waiver of a 12-person jury occurred in open court and is included in the record. Appellant argues that, because his waiver was not in writing, it was invalid. The Court of Criminal Appeals recently held, in Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2002) that, although the failure to obtain a written waiver of the right to a jury trial violated art.1.13 of the Code of Criminal Procedure, such an error was harmless where the record reflected that the defendant knew of his right to a jury trial and voluntarily waived that right. Id. at 348-49. Here, the record reflects that appellant was informed of his right to a 12-person jury.

          Appellant argues that his waiver of his right to a jury of 12 was involuntary. Appellant does not provide any evidence to support his contention that he did not voluntarily waive his right to a trial by jury of 12 persons. All of appellant’s actions reflect that he knowingly and voluntarily waived his right. The trial court informed appellant of his right, and he was given the option of selecting a new panel of 12 jurors. Appellant was afforded an opportunity to consult with his attorney prior to his waiver of his right to 12 jurors. Appellant clearly indicated his desire to proceed with 11 jurors. Appellant’s counsel did not object to the commencement of trial with only 11 jurors, and appellant’s motion for a new trial did not raise the absence of a juror as a point of error. We find appellant’s waiver of his right to a jury composed of 12 jurors, contained in the record and made in open court after his rights were explained to him by the trial court, was voluntary.

          Appellant further contends the trial court erred by dismissing the twelfth juror sua sponte. Appellant did not object to the trial court’s dismissal of the juror. A defendant’s failure to object to a trial court’s sua sponte exclusion of a prospective juror waives the right to complain of the exclusion on appeal. Cooks v. State, 844 S.W.2d 697, 718 (Tex. Crim. App. 1992). We overrule appellant’s first and second points of error.

Verdicts Signed by Foreperson Only

          In his third and fourth points of error, appellant argues that the trial court committed reversible error when it allowed entry of verdicts of guilt and punishment that had been signed by the jury foreman only. When both the verdict of guilt and the verdict of punishment were returned, the trial judge read each form aloud. In both cases, the trial judge noted that the verdict forms were signed by the foreman of the jury. Appellant raised no objection, and the jury was polled each time. When the trial court inquired whether there was any reason not to pronounce sentence, appellant answered that there was not.

          Article 36.29 of the Code of Criminal Procedure requires that, where less than 12 jurors render a verdict in a felony case, “the verdict shall be signed by every member of the jury concurring in it.” Tex. Code Crim. Proc. art. 36.29(a) (Vernon Supp. 2003). However, because appellant did not object to either verdict and thus did not give the trial court an opportunity to cure the error, appellant has waived any error in the form of either verdict. Shelton v. State, 441 S.W.2d 536, 538 (Tex. Crim. App. 1969). Appellant’s third and fourth points of error are overruled.

Trial Court’s Instructions

          In his fifth point of error, appellant argues that the trial court erred when it charged the jury that the State was not bound by the specific dates as alleged in the indictment. The evidence at trial showed that appellant assaulted his daughter repeatedly over a number of years. Appellant now contends on appeal that the jury charge regarding “on or about” language contradicted the trial court’s jury instruction on extraneous offenses. Appellant argues that this contradiction deprived him of his right to an election by the State and of his right to a unanimous jury verdict because the each of the jurors could have found appellant guilty of a different instance of assault.

          It is not necessary for the State to allege a specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 256-56 (Tex. Crim. App. 1997). Instead, the “on or about” language used in indictments has repeatedly been held to allow the State to prove a date other than the one alleged in the indictment “as long as the date is anterior to the presentment of the indictment and with the statutory limitations period.” Id. at 256. Accordingly, the charge was a correct statement of law. Further, the charge did not nullify the court’s instruction regarding extraneous offenses because the charge does not contradict the jury instruction. The “on or about” charge given by the trial court correctly informed the jury that the State was not bound to a specific date. Appellant attempts to read the charge as implying that the State was not bound by a specific offense, an interpretation not supported by the record. The court correctly charged the jury with the applicable law that notified the jury that to find appellant guilty, it was required to find that appellant had sexually assaulted his daughter in the two manners alleged in the indictment to have occurred on two separated dates. We presume that the jury followed that instruction, absent a showing to the contrary. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002). We overrule appellant’s fifth point of error.

Dr. Welch’s Testimony

          In his sixth point of error, appellant contends that the trial court erred when it admitted Dr. Jennifer Welch’s testimony regarding appellant’s suitability for probation. We review the trial court’s decision to exclude or admit expert testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). A ruling within the bounds of reasonable disagreement will not be disturbed on appeal. Id.

          At trial, appellant objected to Dr. Welch’s testimony because it was unreliable, irrelevant, and prejudicial. Appellant asserts that the trial court’s admission of Dr. Welch’s testimony regarding the difficulties that arise in treating sex offenders who are still in denial constituted harmful and reversible error. Specifically, appellant contends this testimony amounted to testimony regarding his suitability for probation and that such testimony is irrelevant and unduly prejudicial.

          During the punishment phase of the trial, outside the presence of the jury, Dr. Welch was examined by both sides. The trial court found, by clear and convincing evidence, that Dr. Welch’s testimony regarding the problems during treatment encountered by sex offenders who were still in denial would assist the jury and that the evidence was reliable, relevant, and probative. Additionally, the trial court noted that it had considered the probative value of the evidence in light of the considerations of Rule 403.

          We first examine appellant’s contention that Dr. Welch’s testimony was irrelevant. Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. In Peters v. State, 31 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d), we held that suitability for probation can be relevant to the jury’s recommendation, even if the opposing party does not first open the door to it, provided it is also “helpful to the jury in determining the appropriate sentence.” Id. at 719 (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)). Dr. Welch’s testimony provided the jury with information about the various types of treatment that would be available to appellant during incarceration and probation, and informed the jury of the problems that sex offenders who were still in denial were likely to have in rehabilitative programs. Although Dr. Welch admitted that she had not personally met with appellant, she discussed the general types of treatment available to a convicted sex offender, and she testified that denial was a common initial problem among sex offenders and was often overcome in treatment. The trial court did not abuse its discretion when it held Dr. Welch’s testimony was relevant.

          Next, we turn to appellant’s contention that Dr. Welch’s testimony was inadmissible because its probative value was outweighed by the danger of unfair prejudice. Although relevant, evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .” Tex. R. Evid. 403. Dr. Welch testified regarding the problems encountered by sex offenders who were still in denial, but she also admitted that she had not met with appellant and that, although it posed an initial hurdle, denial was common among newly convicted sex offenders. Dr. Welch also testified about the depth of treatment options available for sex offenders on probation, and she was questioned by appellant’s counsel about the details of the strict supervision and reporting requirements of the probation program.

          The trial court did not abuse its discretion in finding that the probative value of the testimony offered by Dr. Welch substantially outweighed the danger of unfair prejudice contemplated by Rule 403. Accordingly, the admission of Dr. Welch’s testimony was not an abuse of the trial court’s discretion. We overrule appellant’s sixth point of error.

Improper Jury Argument

          In his seventh point of error, appellant contends that trial court erred when it failed to grant a mistrial after the State invited the jury to punish appellant by assessing 10 years’ imprisonment for “each time that he raped his daughter.” The State made the statement during final argument in the punishment phase of appellant’s trial. Appellant made a timely objection to the statement, and the trial court instructed the jury to disregard the statement. Appellant then moved for a mistrial, which the trial court denied. Appellant now contends the trial court’s failure to grant a mistrial was reversible error because it affected his right to a fair trial.

          A trial court’s denial of a motion for mistrial will not be disturbed on appeal except on a showing of an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. (citing Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990)).

          Proper closing arguments consist of: (1) summations of the evidence, (2) reasonable deductions from the evidence, (3) answers to argument of opposing counsel, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). To determine whether an argument which exceeds these bounds actually constitutes reversible error, we examine whether, “in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.” Id. The argument in this case did not rise to this level—the jury had already heard, and been properly instructed upon, appellant’s extraneous sexual assaults of his daughter. Appellant’s immediate objection to the State’s argument was granted, and the trial court instructed the jury to disregard the argument.

          Generally, the appropriate remedy for improper argument is an instruction to disregard. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). “Only offensive or flagrant error warrants reversal when there has been an instruction to disregard,” and such error “must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.” Wesbrook, 29 S.W.3d at 115-16. Even if the argument made by the State was indeed improper, we find that any harm effected was cured by the trial court’s instruction to disregard. We presume the jury followed the trial court’s instruction. See Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). We overrule appellant’s seventh point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).