Vallon Robert England v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00148-CR

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Vallon Robert England, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 48,644, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

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A jury found appellant Vallon Robert England guilty of aggravated sexual assault and assessed punishment at imprisonment for ninety-nine years and a $10,000 fine. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(i), (2)(A)(iv) (West Supp. 1999). Appellant contends the district court erred by permitting the State to amend the indictment after trial began and by admitting evidence of an extraneous offense. We will overrule these contentions and affirm.

Appellant and the complaining witness, A.S., lived together for two years and had a child together. They separated in December 1996 and A.S. later obtained a protective order prohibiting appellant from coming to her residence. On the evening of April 5, 1998, a male friend helped A.S. change her locks. A.S. and the friend kissed when he left at about 10:30 p.m. A few minutes later, appellant entered A.S.'s house through a bedroom window, got a knife from the kitchen, and confronted her. Appellant accused A.S. of having sex with the man who changed the locks. He then handcuffed her, removed her clothes, and forced her onto a bed. He penetrated A.S.'s anus with his penis while holding the knife to her throat.

Appellant remained in A.S.'s house throughout the night. During this time, he cursed her and threatened to torture and kill her. He slapped her, held his hand over her nose and mouth to prevent her breathing, and dragged her through the house naked and handcuffed. He took her to the shower, placed a hose in her rectum, and turned on the water. He repeatedly raped her anally, vaginally, and orally. At one point, A.S. begged appellant, "[W]hy don't you just go ahead and kill me and get it over with because I can't take any more." Appellant replied, "I haven't tortured you enough yet."

Appellant consumed numerous beers during the course of the night. He eventually went to sleep, and A.S. escaped and sought help. Police found appellant in A.S.'s house later that morning, still asleep.

Indictment

The indictment returned by the grand jury alleged, in pertinent part, that appellant "cause[d] his sex organ to penetrate the anus of [A.S.], a person not his spouse, without the consent of the said [A.S.]." During the third day of trial, the State was permitted over appellant's objection to abandon the allegation that A.S. was not appellant's spouse. Appellant contends this was an amendment to the indictment, which may not be done over objection after trial begins. See Tex. Code Crim. Proc. Ann. art. 28.10(b) (West 1989).

An amendment is an alteration that affects the substance of the indictment. See Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997). An abandonment, even if accomplished by the physical alteration of the indictment as in this cause, does not affect the substance of the indictment. Id. at 133. The deletion of surplusage from an indictment is considered an abandonment, not an amendment. Id. at 134. Surplusage is language that is not legally essential to the offense alleged in the indictment. Id. There is an exception to the last statement: if the unnecessary language is descriptive of that which is legally essential to the indictment, it may not be treated as surplusage. See Burrell v. State, 526 S.W.2d 799, 802-03 (Tex. Crim. App. 1975). Thus, the State may abandon as surplusage only those portions of an indictment that are neither legally essential to the offense alleged nor descriptive of that which is legally essential. See Eastep, 941 S.W.2d at 134.

That the victim of an aggravated sexual assault may be the spouse of the defendant has been the law in Texas since September 1, 1987. See Act of May 26, 1987, 70th Leg., R.S., ch. 573, § 1, 1987 Tex. Gen. Laws 2275 (Tex. Penal Code Ann. § 22.021, since amended). ⁽¹⁾ Thus, the allegation that A.S. was not appellant's spouse was not legally essential to the indictment. Nevertheless, appellant argues that the allegation could not be abandoned as surplusage because it described the victim of the assault.

Appellant urges that this cause is analogous to Franklin v. State, 659 S.W.2d 831 (Tex. Crim. App. 1983). That case was a prosecution for theft by receiving stolen property. The indictment alleged that the defendant received the property knowing it had been obtained from a man named Herzberg. While it was not legally necessary for the State to allege that the defendant knew the identity of the person from whom the property had been stolen, the allegation described both the stolen property element and the defendant's culpable mental state and therefore could not be disregarded as surplusage. Id. at 833.

The elements of aggravated sexual assault as applied to this case are that appellant intentionally or knowingly caused the penetration of A.S.'s anus without her consent, and that appellant used or exhibited a deadly weapon in the course of the criminal episode. See Penal Code § 22.021(a)(1)(A)(i), (2)(A)(iv). The allegation that A.S. was not appellant's spouse did not describe, modify, or explain any of these elements, or identify A.S. as the person assaulted. The allegation did not define the offense more narrowly, place it in a specific setting, or describe the method by which it was committed. ⁽²⁾ Both the conduct and the culpable mental state with which it was committed would have remained exactly the same whether or not A.S. was appellant's spouse. The unnecessary allegation merely added an unnecessary factual averment to the indictment, and was therefore surplusage. See Upchurch v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985) (in prosecution for failing to maintain financial responsibility, unnecessary allegation that vehicle was not exempt from Safety Responsibility Act was surplusage); Kirschner v. State, 997 S.W.2d 335, 340 (Tex. App.--Austin 1999, pet. ref'd) (in prosecution for misapplying construction trust funds, unnecessary allegation that funds were not used to pay actual expenses relating to construction was surplusage).

Because the allegation that A.S. was not appellant's spouse was surplusage, the district court did not err by permitting the State to abandon the allegation after trial began. Issue one is overruled.

Extraneous misconduct

Appellant's remaining issues concern the admission of extraneous offense. N.N. testified that she was involved in a relationship with appellant in 1993. Appellant repeatedly asked her to engage in anal intercourse, but she refused. One night when appellant had been drinking heavily, he seized N.N., threw her on a bed, and penetrated her anus with his penis. As he did so, appellant held a knife to N.N.'s throat and threatened to kill her if she resisted. Appellant contends this testimony was inadmissible because it was irrelevant except to prove his bad character and that he acted in conformity therewith. See Tex. R. Evid. 404(b). Alternatively, he urges that the probative value of N.N.'s testimony was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. ⁽³⁾

Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant evidence is generally admissible. Tex. R. Evid. 402. Evidence of other crimes or wrongs by the defendant, however, is not admissible if it is relevant only to prove the character of the defendant in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b). Unless it is otherwise constitutionally or statutorily proscribed, extraneous misconduct evidence is admissible if it has relevance apart from mere character conformity, that is, if it tends to establish some elemental or evidentiary fact of consequence to the determination of the action. See Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1991) (op. on reh'g). Even if extraneous misconduct evidence is relevant to a fact of consequence, it may still be excluded if its relevance is substantially outweighed by the danger of unfair prejudice. See Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 387; Tex. R. Evid. 403. The decision to admit or exclude extraneous misconduct evidence under either rule 403 or rule 404(b) is reviewable for an abuse of discretion. See Mozon, 991 S.W.2d at 847; Rankin, 974 S.W.2d at 718 (op. on reh'g); Montgomery, 810 S.W.2d at 391-92.

In response to appellant's objections, the State urged that N.N.'s testimony was relevant to the issues of intent and consent. In a prosecution for aggravated sexual assault of an adult, that the defendant engaged in the prohibited conduct intentionally or knowingly without the complainant's consent are elemental facts. See Penal Code § 22.021(a)(1)(A). After overruling appellant's objections, the district court instructed the jury to consider the extraneous misconduct testimony only in determining appellant's intent, plan, motive, common scheme, design, knowledge, consent or lack of consent, lack of mistake, to rebut a defensive theory, or for impeachment.

When the issue addressed is the defendant's intent to commit the offense charged, the relevance of an extraneous offense derives from the doctrine of chances -- the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. See Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987). An unusual or abnormal element might be present in one instance, but the more often it occurs the less likely it is to be the true explanation. See id. For the doctrine of chances to apply, there must be a similarity between the charged and extraneous offenses, since it is the improbability of a like result being repeated by mere chance that gives the extraneous offense probative weight. See Plante v. State, 692 S.W.2d 487, 492 (Tex. Crim. App. 1985). The degree of similarity required, however, is not as great when intent is the material issue as when identity is the material issue and the extraneous offense is offered to prove modus operandi. See Cantrell, 731 S.W.2d at 90; Wiggins v. State, 778 S.W.2d 877, 885 (Tex. App.--Dallas 1989, pet. ref'd).

Both A.S. and N.N. testified to appellant's predilection for anal intercourse which the women did not share. The witnesses then described two similar encounters with appellant. Each testified that appellant, while intoxicated, forced her to engage in anal intercourse at knifepoint, threatening to kill her if she resisted. The incidents described by A.S. and N.N. were sufficiently similar to invoke the doctrine of chances. The district court could reasonably conclude that N.N.'s testimony tended to make the existence of appellant's guilty intent with respect to A.S. more likely than it otherwise would have been. See Montgomery, 810 S.W.2d at 391 (how to review trial court's relevance determination). Because we find that N.N.'s testimony was admissible under rule 404(b) for the reasons discussed, we do not address the other grounds for admission relied on by the district court. Issue two is overruled.

Because appellant also objected to N.N.'s testimony on rule 403 grounds, it was necessary for the district court to determine whether the relevance of her testimony was substantially outweighed by its unfair prejudice. Among the factors that may be considered under rule 403 are the extent to which the extraneous misconduct evidence serves to prove or disprove a fact of consequence, the potential the challenged evidence has to impress the jury in some irrational but indelible way, and the extent of the proponent's need for the evidence, which includes the subissue of whether the relevant fact is in dispute. See Mozon, 991 S.W.2d at 847; Montgomery, 810 S.W.2d at 389-90.

That appellant intended to challenge the credibility of A.S.'s accusations became apparent during jury selection, when defense counsel told the panelists that "the evidence is going to show that she's a liar, she's a drug user and alcohol abuser" and that "the question is going to be one of credibility of the witnesses." Counsel also asked the panelists if they "believe[d] that just because someone has a bruise or an abrasion or a mark that they would have had to have been raped."

Appellant's cross-examination of A.S. quickly turned to the issue of her mental health history. When the State objected to this line of questioning, appellant urged that it was relevant "to her state of mind and the reason for the fabrication of these charges." The State's objection was overruled and A.S. acknowledged that she had been under psychiatric care for about ten years. A.S. also admitted telling others that she wanted appellant "away for 30 years," but denied saying she had "figured out a way . . . to get Vallon out of the way." The cross-examination then turned to A.S.'s previous sexual relations with appellant. See Tex. R. Evid. 412(b)(2)(B) (in prosecution for aggravated sexual assault, evidence of complainant's past sexual behavior with accused admissible if offered by accused on issue of consent). A.S. was asked if "you ever told him that no, no, no and then you got into the sex act and enjoyed it?" She replied that she did not. A.S. was then asked if she ever voluntarily engaged in anal intercourse with appellant. She again said no. At this point, the jury was excused and appellant sought the court's permission to introduce in evidence a videotape purporting to show appellant and A.S. engaging in anal intercourse, at the end of which "she starts laughing and playing and she does no more objecting." The State objected, and appellant withdrew the offer after a lengthy discussion with the court. The jury returned, and appellant again asked A.S. if she had ever voluntarily engaged in anal intercourse with appellant. A.S. acknowledged that she had done so. She also agreed that she had sometimes "said 'no' . . . and then got into it and enjoyed it."

Appellant's cross-examination obviously was designed to impeach A.S.'s credibility and to suggest to the jury that A.S. had voluntarily engaged in sexual activity with appellant on the night in question. Appellant's efforts were rewarded when A.S. admitted, after first denying, that she had occasionally engaged in anal intercourse with appellant voluntarily, and that she had sometimes enjoyed the act even after initially resisting it. While other witnesses testified regarding A.S.'s outcry following the assault, A.S.'s outcry statements were subject to the same credibility attack as her trial testimony. And medical testimony describing lacerations to the rectum was not inconsistent with an act of consensual penetration.

N.N.'s testimony was compelling evidence on a contested issue. Moreover, N.N.'s testimony appears to have been the only evidence available to the State to corroborate A.S.'s impeached testimony that she had been sexually assaulted. While N.N.'s testimony was certainly prejudicial to appellant, it was not so inflammatory as to render the court's limiting instruction ineffective. In this connection, we note that the instruction was given twice: when N.N. testified and in the jury charge. The district court did not abuse its discretion by admitting N.N.'s testimony over appellant's rule 403 objection. See Montgomery, 810 S.W.2d at 392-93 (how to review trial court's prejudice determination). Issue three is overruled.

The judgment of conviction is affirmed.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: December 23, 1999

Do Not Publish

1. The requirement that the victim not be the spouse of the accused remained an element of sexual assault until September 1, 1991. See Act of May 27, 1991, 72d Leg., R.S., ch. 662, § 1, 1991 Tex. Gen. Laws 2412 (Tex. Penal Code Ann. § 22.011, since amended).

2. Compare the allegation at issue with the allegation that appellant penetrated A.S.'s anus with his penis. While legally unnecessary to state an offense (the statute proscribes penetration by any means), the allegation described the penetration element and could not have been abandoned by the State.

3. Appellant also refers to N.N.'s statement that on another occasion, appellant held her and a male friend at gunpoint, beat the friend with the butt of the gun, and stabbed N.N. in the leg. She did not testify to this incident before the jury, however, and its admissibility is not in question.

that "the evidence is going to show that she's a liar, she's a drug user and alcohol abuser" and that "the question is going to be one of credibility of the witnesses." Counsel also asked the panelists if they "believe[d] that just because someone has a bruise or an abrasion or a mark that they would have had to have been raped."

Appellant's cross-examination of A.S. quickly turned to the issue of her mental health history. When the State objected to this line of questioning, appellant urged that it was relevant "to her state of mind and the reason for the fabrication of these charges." The State's objection was overruled and A.S. acknowledged that she had been under psychiatric c