Bill Cramer v. State ( 2009 )

NO. 12-08-00061-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BILL CRAMER, § APPEAL FROM THE 217TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Bill Cramer appeals from his convictions for three counts of indecency with a child, two
counts of aggravated sexual assault, and four counts of sexual assault. In four issues, Appellant
argues that the evidence is insufficient to support the verdicts, that the trial court erred in
allowing a police officer to testify about a child’s statements to him, and that the trial court erred
by sustaining the State’s objection to the admission of certain physical evidence. We affirm.
BACKGROUND
On June 21, 2006, eighteen year old S.S.’s ex–boyfriend came to her house and delivered
an envelope to S.S.’s mother, Sherry. S.S. tried to take the envelope from Sherry, but she was
unable to do so. Sherry reviewed the contents of the envelope and learned that S.S. had had a
sexual relationship with her ex–boyfriend. S.S. confirmed the relationship but told her mother it
was not the first time she had had sexual intercourse. After further conversation, she told her
mother that Appellant, her stepfather, had sexually assaulted her when she was a sophomore in
high school.
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Six days later, after being encouraged to do so by an Army recruiter who was helping her
join the service, S.S. reported the assault to the police. After that, S.S.’s father contacted
Appellant’s ex–wife, Cecelia, and told her about the allegations. This gave rise to a painful
realization for Cecelia as she recalled that the daughter she had with Appellant, C.C., had not
wanted to visit him and that she had returned from one visit with Appellant with her genital and
anal areas reddened and “raw.” At the time, C.C. said that Appellant had caused the injuries
inadvertently with a washcloth while bathing her, and Cecelia had not suspected abuse. After
hearing from S.S.’s father, Cecelia asked C.C., then a teenager, if Appellant had assaulted her.
C.C. did not say that she had been assaulted, but Cecelia had her examined and filed a report
with the police.
In December 2006, an Angelina County grand jury indicted Appellant, alleging that he
had committed three counts of indecency with a child (with C.C. and S.S. as the victims), two
counts of aggravated sexual assault (with C.C. as the victim), and four counts of sexual assault
(with S.S. as the victim). In September 2007, the State moved to amend the indictment, altering
only the alleged dates and manner in which it alleged that Appellant committed the aggravated
sexual assaults.
A trial was held in 2008. Appellant pleaded not guilty. The jury found him guilty as
charged and assessed punishment at five years for each of the indecency counts, twenty–five
years for each of the aggravated sexual assault counts, and ten years for each of the sexual
assault counts. The trial court ordered that the sentences be served concurrently. This appeal
followed.
SUFFICIENCY OF THE EVIDENCE
In his first two issues, Appellant argues that the evidence is legally and factually
insufficient to support the verdicts.
Standard of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315B16, 99 S.
Ct. 2781, 2786B87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim.
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Ohio App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.BTyler 2006, pet. ref=d). Evidence
is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Rollerson v. State, 227 S.W.3d
718, 724 (Tex. Crim. App. 2007).
While legal sufficiency review is all that is required by the U.S. Constitution, the Texas
Court of Criminal Appeals has determined that the Texas Constitution requires further review of
the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129B30 (Tex. Crim.
App. 1996). Factual sufficiency review differs from legal sufficiency review only slightly. See
Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In a factual sufficiency review,
we review the evidence without the light most favorable to the verdict and we are authorized,
“albeit to a very limited degree,” to disagree with the jury’s resolution of contested factual
issues. See id.; Watson v. State, 204 S.W.3d 404, 414, 417 (Tex. Crim. App. 2006). In a review
of the factual sufficiency of the evidence, we will conclude that the evidence is insufficient only
if the great weight and preponderance of the evidence contradicts the jury=s verdict or the verdict
is clearly wrong and manifestly unjust. See Rollerson, 227 S.W.3d at 724; Watson, 204 S.W.3d
at 417.
Under either standard, our role is that of appellate review, and the fact finder is the
principal judge of the weight and credibility of a witness=s testimony. Wesbrook v. State, 29
S.W.3d 103, 111B12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some,
or none of a witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
As alleged in the indictment, the State was required to prove that Appellant engaged in
sexual contact with a child younger than seventeen years of age and not his spouse (indecency
with a child, TEX. PENAL CODE ANN. §§ 21.11(a), (b–1) (Vernon Supp. 2009));1 that Appellant
intentionally or knowingly caused the penetration of the anus or sexual organ of another person
under the age of seventeen and not his spouse (sexual assault, TEX. PENAL CODE
ANN. §§ 22.011(a)(2)(A), (c)(1), (e)(1) (Vernon Supp. 2009)); and that Appellant intentionally or
1
These statutes have been amended by the legislature since the trial, but the changes do not affect our
analysis. For ease of reference, we cite the most recent versions of the statutes.
3
knowingly caused the penetration of the anus or sexual organ of a person younger than fourteen
years of age (aggravated sexual assault, TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B)
(Vernon Supp. 2009)).
Analysis
Appellant argues that there is no physical evidence that S.S. was assaulted and that her
testimony is internally inconsistent and unbelievable. He also argues that there is no conclusive
physical evidence that C.C. was assaulted, that she only said that she had been assaulted after the
indictment was returned, and that a witness’s testimony about her outcry should not have been
admitted and should be afforded little weight.
We begin with the observation that the uncorroborated testimony of a child witness is
sufficient to support a conviction for sexual assault or for aggravated sexual assault. See TEX.
CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (Vernon 2005); Satterwhite v. State, 499 S.W.2d
314, 315 (Tex. Crim. App. 1973); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.BHouston
[14th Dist.] 2002, pet. ref=d). Both of the young women in this case testified about the assaults
and acts of indecency with a child that Appellant committed against them.
The assaults and acts Appellant committed against S.S. were against her will. But over
time, the assaults became less like an attack by a stranger and more like a sexual relationship.
For example, S.S. testified that Appellant would stimulate her with his hand and insist that she
have an orgasm before he would stop. And while she sought to avoid having sexual relations
with Appellant, S.S. did initiate sexual contact with Appellant to avoid having to perform other
acts or in an effort to shield another child.
Her testimony about the nature of their relationship was corroborated by several
witnesses who knew both of them. S.S.’s aunt testified that she was dropping her daughter off at
school one day when she was stuck behind a pickup truck in which the occupants were
“intimately kissing.” She had to leave because she had to drop another daughter off at another
school and was concerned that she would be late. It was then that S.S. slid out of the passenger
side of the truck. Appellant was the other occupant of the truck. Additionally, one of
Appellant’s coworkers testified about times when he observed S.S. sitting on Appellant’s lap in a
pose he thought was inappropriate and recalled a wrestling incident between Appellant and S.S.
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during which he thought the two were overly affectionate. The friend’s wife, who was present
for the wrestling incident, described it as “quite flirtatious” and almost like “courting” or
“foreplay.” She also testified that the next morning, S.S. brought Appellant his breakfast and she
sat in his lap with her legs over the side of the chair. She thought it appeared inappropriate and
more like “couple behavior” than “father/daughter” behavior.
Further, a former boyfriend of S.S. testified that Appellant wanted to meet him before he
took S.S. to the prom and that Appellant’s attitude towards him seemed more like that of a
romantic rival than a concerned father. The boyfriend provided the prosecution with
photographs of Appellant and S.S. on prom night. The pictures were introduced into evidence
and show S.S. in her dress and Appellant standing behind her with his hands low on her hips.
The former boyfriend thought the placement of Appellant’s hands was overly affectionate.
Finally, in terms of corroboration generally, S.S. was able to describe the physical attributes of
Appellant’s groin area. There was nothing remarkable about her description, but C.C.’s mother,
Appellant’s ex–wife, gave a similar description.
With respect to C.C., there was medical evidence that supported her testimony that
Appellant penetrated her anus. Specifically, she bled from this area of her body as a small child.
She was evaluated by several doctors at the time, and no satisfactory diagnoses were rendered.
At one examination she had a skin tag on her rectum. A second skin tag was detected when she
was evaluated by a nurse after S.S.’s report of the assault. There was testimony that skin tags
could be the result of injury to the rectum that could come from a sexual assault. The nurse also
observed that the dilation of C.C.’s anus and her sphincter response were abnormal. She testified
that these responses were consistent with sexual assault. There was conflicting testimony as to
whether the bleeding stopped after C.C. stopped visiting Appellant. She and her mother testified
that it did, although she continued to seek treatment.
There was also evidence contrary to the verdict. Appellant testified that he did not
assault or touch the girls. Additionally, S.S.’s mother did not believe S.S.’s allegations and she,
along with other witnesses, testified about the logistical difficulty of such acts having occurred.
For example, the house where most of the assaults on S.S. allegedly occurred was relatively
small and witnesses, including S.S., testified that one could easily hear what was going on in
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other parts of the house. Furthermore, some of the described assaults occurred in unlikely
circumstances, including when S.S.’s mother was in the shower or in the next room cooking
dinner. Finally, none of the medical professionals who examined C.C. around the time she said
she was assaulted had diagnosed her with having been sexually assaulted or made reports to the
authorities after examining her.2
With respect to the outcry witness, Appellant argues in the third issue that this testimony
should not have been admitted. We address the admissibility of the outcry statement in the next
section of our opinion. In terms of the sufficiency of the evidence, we think the outcry had little
effect on the verdict. The outcry in this case was unusual because C.C. told a Texas Ranger that
Appellant committed acts for which Appellant had already been indicted. However, Appellant’s
argument that C.C.’s testimony was a false memory or part of an attempt to frame him was not
damaged by the unusual outcry so close to trial. If the memory was false or part of a conspiracy,
that process was well along by the time the outcry occurred, and we think it unlikely that the jury
considered the outcry statement to be different from or somehow corroborative of C.C.’s
testimony at trial.
After reviewing all of the evidence, we conclude that a rational jury could find the
essential elements of the offenses beyond a reasonable doubt and that the evidence is legally
sufficient to support the verdict. Both young women testified about the assaults. Their
testimony, if believed, proved each of the essential elements of the charged offenses. There is
substantial corroborative evidence, and while not uncontroverted, a rational jury could credit the
testimony of C.C. and S.S.
With respect to the factual sufficiency of the evidence, we hold that the great weight and
preponderance of the evidence does not contradict the jury’s verdict and that the verdict is not
clearly wrong and manifestly unjust. The resolution of this case turned almost entirely on an
evaluation of the credibility of witnesses and the weight to be afforded to each witness’s
2
The specialist who examined C.C. testified that he was obligated to report sexual abuse when his
examination “absolutely indicates sexual abuse.” He testified that when he examined her, there was only one skin
tag. While that could be consistent with sexual abuse, he testified that he did not report it because there could be
other explanations. He testified that a second skin tag, which indicated an additional injury, would be very abnormal
unless it was connected with specific diseases that C.C. did not have.
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testimony. The jury is in the best position to make that determination, and we hold that the
evidence is factually sufficient.
We overrule Appellant’s first and second issues.
OUTCRY TESTIMONY
In his third issue, Appellant argues that the trial court erred by allowing the testimony of
Texas Ranger Peter Maskunas as to C.C.’s oral statement to him about Appellant’s actions.
Applicable Law
Hearsay statements, while generally inadmissible, may be admitted under specific
conditions when public policy supports their use, and the circumstances surrounding the making
of those statements support their reliability. See Martinez v. State, 178 S.W.3d 806, 810 (Tex.
Crim. App. 2005). The legislature has determined that one such situation is the outcry, or
self-reporting, statement of a child victim of sexual or physical abuse. Id. at 810–11; see TEX.
CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2009).
However, the use of such out of court statements is carefully limited. Only those
statements made to a person eighteen years of age or older qualify, and then only if the child was
twelve or younger when the abuse occurred. See TEX. CODE CRIM. PROC. ANN. art. 38.072, §§ 1,
2(a)(2). The state must provide adequate pretrial notice to the defendant of its intent to introduce
the child outcry statement, and it must provide the name of the outcry witness and a summary of
the hearsay statement. Id. § 2(b)(1). Furthermore, the trial court must first determine, outside
the presence of the jury, that the statement is reliable “based on the time, content, and
circumstances of the statement,” and the child must testify at trial or be available to testify. Id.
§§ 2(b)(2), 2(b)(3).
Generally, we review a trial court’s ruling on the admission of evidence for an abuse of
discretion. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Specifically, a trial court’s
determination that an outcry statement is admissible under article 38.072 is reviewed for an
abuse of discretion. See Nino v. State, 223 S.W.3d 749, 752 (Tex. App.–Houston [14th Dist.]
2007, no pet.); see also Garcia v. State, 792 S.W.2d 88, 91–92 (Tex. Crim. App. 1990).
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Analysis
Appellant makes two arguments. First, he argues that Ranger Maskunas was not a proper
outcry witness because Appellant had already been indicted for the offenses at the time she made
the outcry to Maskunas. Second, Appellant argues that the outcry is “unreliable as a matter of
law.”
With respect to his first argument, we agree with Appellant that the sequence of events in
this case is unusual. Many criminal investigations begin with the victim’s making a report of a
crime. An investigation follows, an indictment is returned or an information filed, and then the
case proceeds to trial. In this case, there was an investigation that included an outcry from C.C.
to her mother for the offenses of indecency with a child. C.C. never told anyone that Appellant
had penetrated her anus, but the grand jury indicted him for two counts of aggravated sexual
assault, alleging that he penetrated her anus with his finger and with his sexual organ. Then,
after the indictment but prior to trial, C.C. disclosed to Maskunas that Appellant had penetrated
her anus with his sexual organ. The State amended the indictment to allege in both counts that
Appellant had penetrated her anus with his sexual organ and amended the dates on which the
alleged offenses occurred.
Several lengthy conversations occurred between the trial court, the district attorney, and
Appellant’s counsel on this matter. Appellant argued that it was a “reasonable assumption that
[C.C.] made these [outcry] statements to someone else as to these specific allegations.”
Accordingly, he argued that Maskunas could not have been the first person to whom C.C.
disclosed these occurrences. The district attorney, without stating that this was the case,
postulated that the grand jury returned its indictment based on the medical information about
C.C., the rectal bleeding that she suffered, and the information about the assaults on S.S.
The district attorney represented that there was no other person to whom C.C. had
confided about the aggravated sexual assaults, and the evidence at trial bore that out. C.C. and
her mother testified that C.C. did not talk about the assaults, and no other witness was revealed
whom C.C. had told about the aggravated sexual assaults. Accordingly, we hold that the trial
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court did not abuse its discretion by allowing the outcry testimony simply because it came after
the indictment had been returned. Article 38.072 contains several specific procedural and
substantive requirements including that the witness be the first person to whom the child first
made a statement about the offense. Maskunas was that witness according to the evidence at
trial.
With respect to Appellant’s argument that Maskunas’s testimony was unreliable as a
matter of law, he argues specifically that it was very convenient for the State that an outcry
witness appeared in the months before trial, that the description was overly precise, and that the
“recognized guidelines for forensic interviews” were not followed.
Our analysis of whether the outcry statement was reliable in “time, content, and
circumstances” is based on “the time the child’s statement was made to the outcry witness, the
content of the child’s statement, and the circumstances surrounding the making of that
statement.” See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2); Broderick v. State, 89
S.W.3d 696, 699 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d). Factors a trial court may
consider in assessing the reliability of a child’s statement include
(1) whether the child victim testifies at trial and admits making the out of court statement;
(2) whether the child understands the need to tell the truth and has the ability to observe,
recollect, and narrate;
(3) whether other evidence corroborates the statement;
(4) whether the child made the statement spontaneously in her own terminology or whether
evidence exists of prior prompting or manipulation by adults;
(5) whether the child’s statement is clear and unambiguous and rises to the needed level of
certainty;
(6) whether the statement is consistent with other evidence;
(7) whether the statement describes an event that a child of the victim’s age could not be expected
to fabricate;
(8) whether the child behaves abnormally after the contact;
(9) whether the child has a motive to fabricate the statement;
(10) whether the child expects punishment because of reporting the conduct; and
(11) whether the accused had the opportunity to commit the offense.
9
Norris v. State, 788 S.W.2d 65, 71 (Tex. App.–Dallas 1990, pet. ref’d) (citing Buckley v. State,
758 S.W.2d 339, 343–44 (Tex. App.–Texarkana 1988), aff’d, 786 S.W.2d 357 (Tex. Crim. App.
1990)). These factors are not exclusive, and “courts have considerable leeway in their
consideration of appropriate factors.” Smith v. State, 61 S.W.3d 409, 412–13 (Tex. Crim. App.
2001).
Applying these factors, we hold that the trial court did not err. Several factors weigh in
favor of admissibility. The child testified at trial that she made the statement, and she appeared
to understand the need to tell the truth. She had the ability to observe and narrate, and other
evidence–specifically the medical evidence and her seemingly irrational fear of her father–
corroborated her story. The child’s statement, while brief, is clear and unambiguous, and it is
consistent with the other evidence. The child behaved abnormally after the contact, and the
accused had the opportunity to commit the offense.
On the other hand, several factors weigh against admissibility. With respect to the fourth
factor, reasonable minds could differ as to the spontaneity of the statement and the amount of
prompting that preceded it. It was plain, at least to the district attorney, that he could not proceed
on the counts relating to the sexual assault of C.C. without her testimony that they occurred.
Furthermore, Maskunas’s testimony as to the questioning he used, along with the lack of
recording of the session, leads to an incomplete picture. Maskunas testified that when
conducting an interview such as this one, he allowed the child to take the interview in the
direction “she wanted to go.” However, he also testified that his purpose in his interview with
C.C. was to get to know her and also to determine “what information she was willing to talk
about.” When asked if he asked leading questions, Maskunas said, “Not to my knowledge.” So,
with respect to this factor, there is not evidence that Maskunas suggested anything to the victim,
but neither is there the kind of certainty on this issue that there would be with a recording of the
interview.
Furthermore, though not presented before the trial court made its ruling, Maskunas
testified that when he asked C.C. what she meant by anal intercourse, “she described it as an act
of a man placing his penis in the rectum of a female for sexual pleasure.” Although he described
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it as a “quotation,” it is not clear if these were the exact words C.C. used or his own paraphrase.
If it is a direct quotation, it would be an unusual way for a young teenager to describe that act.
Indeed, in her own testimony, C.C. described the act as Appellant putting his “private part” in
her “bottom.”
It cannot be said that the child could not have fabricated the act she described. And while
there is no evidence that the child had a motive to fabricate, there was evidence of considerable
tension between her parents. The child had been threatened with consequences if she told of the
event. But it is not clear if this makes the actual outcry more or less reliable, as she had other
opportunities to self–report, including counseling sessions in which she would have been able to
disclose this abuse.
Appellant’s argument addresses most directly the fourth factor, that is whether the
statement was prompted or manipulated by Maskunas. Maskunas had a plausible explanation for
why the statement was not recorded. He testified that he did not expect C.C. to divulge this
information to him. Appellant argues that this is not the case, and that Maskunas’s notes show
that he was there to “discuss the history of abuse by [C.C.’s] father, [Appellant.]” This
observation is slightly off the mark to the extent that C.C. had already disclosed incidents that
supported the charged offense of indecency with a child. But, when coupled with Maskunas’s
answer about leading questions, and the fact that Appellant had been indicted for the aggravated
sexual assault and the State needed her testimony, this factor weighs against the reliability of the
statement.
On the other hand, there is no evidence that Maskunas prompted or manipulated the
statement, and most of the other indicia of reliability weigh in favor of admitting the outcry
statement. Accordingly, we hold that the trial court did not abuse its discretion by allowing
C.C.’s statement to Maskunas to be admitted. We overrule Appellant’s third issue.
ADMISSION OF EVIDENCE
In his fourth issue, Appellant argues that the trial court erred when it did not allow into
evidence the contents of the envelope delivered by S.S.’s ex–boyfriend to her mother, the
envelope that prompted the investigation that led to this case being brought.
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The State objected to the evidence on the grounds that the evidence was either hearsay or
irrelevant, that it violated the right to confront witnesses, and that the prejudicial value of the
evidence outweighed any probative value. The trial court sustained the State’s objection, and the
disputed evidence was not admitted at trial. Appellant did not make an offer of proof of the
evidence he had sought to admit.
To preserve error in the exclusion of evidence, a party must make a sufficient offer of
proof and obtain a ruling. TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.1(a)(1)(A); Hernandez v.
State, 127 S.W.3d 206, 216 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d). Error may not be
predicated upon a ruling that excludes evidence unless a substantial right of a party is affected
and the substance of the evidence was made known to the court by offer of proof or was apparent
from the context within which the questions were asked. TEX. R. EVID. 103(a)(2); Warner v.
State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); Hernandez, 127 S.W.3d at 216. An offer of
proof must show that the excluded evidence is relevant and admissible and must show the facts
that a defendant wishes to prove. See Edwards v. State, 178 S.W.3d 139, 146 (Tex. App.–
Houston [1st Dist.] 2005, no pet.); Railsback v. State, 95 S.W.3d 473, 478 (Tex. App.–Houston
[1st Dist.] 2002, pet. ref’d). An offer of proof must be specific enough to enable the reviewing
court to determine the admissibility of the disputed evidence, though only a short factual
recitation of what the testimony would show may suffice. See In re N.R.C., 94 S.W.3d 799, 806
(Tex. App.–Houston [14th Dist.] 2002, pet. denied).
In this case, there is literally nothing for us to review. Neither the Appellant’s discussion
of the evidence or the State’s brief description3 of it are sufficient for us to form more than a
vague surmise of what this evidence might be. Accordingly, Appellant has not preserved this
issue for our review, and we overrule Appellant’s fourth issue.4
3
In its brief, the State lists the six exhibits and describes them as note, letters, cards, and a hotel room key
and describes who the various communiqués are to and from. The State does not describe the contents of the written
material.
4
In some of the cases before this court, it does happen that items that are in the appellate record, that is
admitted at trial and requested as part of the appellate process, nevertheless do not make it into the record filed in
this court. This happens most often with items of physical evidence, which court reporters often retain. Because of
this, and because the record is vague as to where these pieces of evidence went after the trial court determined they
were inadmissible, we instructed the clerk of our court to inquire of the court reporter if these items were in the
record maintained at the trial court. They are not. Furthermore, we note that the State argued in its brief that this
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DISPOSITION
Having overruled Appellant’s four issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered November 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
issue was not preserved because there had not been an offer of proof and that the exhibits were not in the appellate
record. Appellant filed a reply brief and responded to issues raised by the State in the fourth issue, but did not
respond to the preservation argument.
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