Green, Lawrence Telford v. State ( 2004 )

Affirmed and Memorandum Opinion filed November 4, 2004

Affirmed and Memorandum Opinion filed November 4, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00883-CR

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LAWRENCE TELFORD GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 929,495

M E M O R A N D U M   O P I N I O N

Appellant Lawrence Telford Green was convicted of sexual assault of a child. A jury sentenced him to fifteen years= confinement.  In challenging his conviction, appellant presents four issues for appellate review, arguing: (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting evidence that he was charged in 1982 with felony sexual assault of a child; (3) the trial court erred in denying his motion for mistrial; and (4) the trial court erred in allowing the State to introduce evidence of the previous charge filed against him in 1982 because the application of the 1993 amendment to Article 37.07 of the Texas Code of Criminal Procedure violates the Ex Post Facto Clause of the United States Constitution.  We affirm the trial court=s judgment.

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally insufficient to support his conviction, citing Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).  A person commits the offense of sexual assault of a child if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means.  Tex. Pen. Code Ann. ' 22.011(a)(2)(A) (Vernon Supp. 2004).  A Achild@ is defined as a person younger than the age of seventeen who is not the spouse of the actor.  Tex. Pen. Code Ann. ' 22.011(c)(1) (Vernon Supp. 2004).

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we believe the State=s evidence or believe that the appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Appellant does not identify or discuss any specific elements of the crime for which he was convicted; rather, he contends that the State failed to meet its burden of proof beyond a reasonable doubt because (1) the testimony of the complaining witness lacks credibility, and (2) there exists a conflict between the testimony of the complaining witness and that of witness Laronda Sparks as to the time period during which the complaining witness resided with appellant in his apartment.  We find that neither contention provides grounds for reversal of the trial court=s judgment.

As to appellant=s first contention, the juryCnot this courtCis the sole judge of the credibility of the witnesses= testimony and the strength of such evidence, and we may not substitute our judgment for that of the trier of fact.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  Appellant=s second contention is similarly without merit because we presume that the trier of fact resolves conflicts in favor of the prevailing party when faced with conflicting evidence.  See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Moreover, our review of the record indicates that the evidence is legally sufficient to support each element of the offense for which appellant was convicted.  Accordingly, we overrule appellant=s first issue.

Although appellant=s argument addresses only legal sufficiency, appellant asks for a remand under his first issue.  Therefore, in the interest of justice, we will address the factual sufficiency of the evidence.  When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, __ S.W.3d __, __ (Tex. Crim. App. Apr. 21, 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met.  Id. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at *4.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). After viewing all of the evidence under the factual-sufficiency standard of review, we conclude that the evidence is factually sufficient to support appellant=s conviction.

Admission of Evidence of Previous Charges and Confession

In his second issue, appellant alleges two separate instances of error during the punishment phase of trial: (1) the admission of testimony that appellant previously had been charged with sexual assault of a child, evidence which the State contended showed a pattern of criminal conduct, and (2) the admission of a written confession allegedly signed by appellant concerning that incident. 

Previous Charges of Sexual Assault

To support his complaint that the trial court erred in admitting testimony that appellant previously had been charged with sexual assault of a child, appellant argues the evidence is inadmissible under Texas Rule of Evidence 403. Specifically, appellant contends that (1) the prior felony sexual assault charge from more than twenty years before trial is too remote in time to be used in this case, and (2) this evidence is unfairly prejudicial.^[1] 

As to the remoteness issue, this court previously has held that remoteness limitations like those contained in Texas Rule of Evidence 609(b) do not apply to evidence of extraneous crimes or bad acts introduced at the punishment phase under article 37.07, section 3(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2004); Saldivar v. State, 980 S.W.2d 475, 504B05 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d) (addressing admissibility of testimony concerning incident from twelve years before charged offense).  Therefore, the trial court did not abuse its discretion in overruling appellant=s remoteness objection to this evidence.

Appellant also asserts that the trial court abused its discretion in determining that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice.  The Texas Code of Criminal Procedure permits trial courts to admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts.  See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a).  At the punishment hearing, relevant evidence is that which assists the fact finder in determining the appropriate sentence to give to the particular defendant in the circumstances presented.  See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). This language grants wide latitude in the admission of evidence deemed relevant.  See Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d); Saldivar, 980 S.W.2d at 504B05.  Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  See Tex. R. Evid. 403; Saldivar, 980 S.W.2d at 504B05.  As used in Rule 403, Aunfair prejudice@ means the undue tendency of the evidence to suggest a decision on an improper basis.  See Rogers, 991 S.W.2d at 266.  We will not disturb a trial court=s determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown. See Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996).

During the punishment phase of the trial, Detective Jerry McCurry testified that in the spring of 1982, he investigated an allegation by a child who alleged that appellant had sexually assaulted her in an apartment in 1979, when she was eleven years old and appellant was sixteen years old. Detective McCurry stated that he interviewed appellant after the complainant in the 1979 incident identified appellant from his picture in a high school yearbook.  Detective McCurry testified that in his first interview, appellant denied having ever met the 1979 complainant; however, appellant later contacted Detective McCurry and stated that he wanted to tell him the truth about what had happened.  Detective McCurry testified that, in a second interview, after being admonished and signing a written waiver of his Miranda rights, appellant gave a voluntary statement which Detective McCurry typed up and appellant signed.  This written statement was admitted in evidence during the punishment phase of the trial.  The written statement relates the following details, among others, regarding appellant=s alleged encounter with the eleven-year-old complainant in the 1979 case:

!         Appellant entered the apartment of a girl whom he believed was 12 or 13 years old.  He held his hand out to the girl and asked her if she wanted to show him around.

!         The girl started screaming and acting like she was scared, and appellant held his hand over the girl=s mouth and asked her what was wrong.  The girl told appellant she thought he was going to rape her.

!         The girl calmed down, started talking to appellant, and then asked him to perform anal intercourse on her. Appellant replied that he did not do that kind of thing but asked her if she engaged in oral sex, and she said she did. The two went to a bedroom, and the girl performed oral sex on appellant.  When someone knocked on the door, appellant exited the apartment through the bedroom window.

!         Appellant did not hit or threaten the girl, but only put his hand over her mouth and told her to be quiet because he did not want people to think that he was hurting her. 

!         Appellant told the girl to be quiet and not to tell people what had happened and that he would kill her if she told anyone. 

Detective McCurry testified that a case was filed against appellant based on this alleged episode and that appellant was certified to stand trial as an adult.  However, Detective McCurry testified that, according to the court records, the case was dismissed at the complainant=s request.  Appellant testified during the punishment phase that he did not engage in any of the conduct described in the statement that Detective McCurry asserted appellant gave to him in 1982, that appellant never made that statement or signed that document, and that appellant does not believe that he made any statement at all to Detective McCurry.  After reviewing the record, we conclude that the trial court did not abuse its discretion in determining that the probative value of the evidence regarding this prior sexual assault charge was not substantially outweighed by the danger of unfair prejudice.^[2]  See Rogers, 991 S.W.2d at 265 (holding that trial court did not abuse its discretion in concluding, during punishment phase, that probative value of appellant=s sentences of 15 years, 15 years, and 75 years for robbery convictions in 1976, 1981, and 1986 was not substantially outweighed by danger of unfair prejudice); Davis v. State, 68 S.W.3d 273, 283B84 (Tex. App.CDallas 2002, pet. ref=d) (holding that, in context of punishment phase following convictions for money laundering and securing execution of documents by deception, trial court did not abuse its discretion in determining that probative value of testimony regarding facts of appellants= three 1981 murder convictions was not substantially outweighed by danger of unfair prejudice, even though testimony showed that appellant participated in a scheme to recover insurance and inheritance benefits and that, in furtherance of this scheme, appellant showed the gunman to an infant=s crib where the gunman shot the baby in the back of the head).

Written Confession to Prior Charges

Appellant separately complains that the trial court erred in admitting evidence of a written confession to the crime with which he previously was charged because the State did not provide notice of its intent to use this evidence of an extraneous offense as required under Texas Rule of Evidence 404(b). However, a defendant=s discovery motion containing a request for such notice is ineffective to trigger the Rule 404(b) notice requirements unless he secures a ruling on his motion.  Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993).  In the present case, appellant=s request was contained only in his motion for pre-trial discovery and inspection of evidence; the record reflects, and the trial court acknowledged, the fact that appellant did not secure a ruling on this motion. Therefore, the State was not required to provide notice.

In addition to asserting arguments based on lack of notice under Rule 404(b), appellant also asserts the trial court erred in admitting the written confession based on Texas Rule of Evidence 403.  Appellant alleges the probative value of this written confession is substantially outweighed by the danger of unfair prejudice.  Appellant, however, failed to object to the admission of the written confession on this basis in the trial court.  Therefore, appellant has not preserved error as to this complaint.  See McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998) (stating that error is forfeited when the complaint on appeal differs from the complaint at trial).  In any event, even if appellant had preserved error as to this objection to the written confession, he could not establish an abuse of discretion by the trial court in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.  See Rogers, 991 S.W.2d at 265; Davis, 68 S.W.3d at 283B84.

Accordingly, we overrule appellant=s second issue.

Motion for Mistrial

In his third issue, appellant argues that the trial court erred in denying his motion for mistrial.  In response, the State contends that appellant failed to preserve error.  We agree.  To preserve error, a party generally must make a complaint to the trial court in a timely fashion.  See Tex. R. App. P. 33.1(a).  To be timely, a complaint must be made as soon as the grounds for the complaint are apparent or should be apparent.  Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999).  That subsequent events may cause a ground for a complaint to become more apparent does not render timely an otherwise untimely complaint.  Id.

During appellant=s cross-examination of his former girlfriend in the guilt-innocence phase of trial, appellant=s former girlfriend testified that appellant previously had been charged with sexual assault of a child.  Appellant objected at that time; however, appellant did not specify the basis of his objection or obtain a ruling from the trial court. Furthermore, appellant did not request a curative instruction or move for a mistrial at that time.  The day after the jury reached a guilty verdict, but shortly before the punishment phase convened, appellant presented his motion for mistrial to the trial court.  We conclude that appellant did not preserve error in the trial court as to his motion for mistrial because he failed to timely move for a mistrial.  See Haliburton v. State, 80 S.W.3d 309, 315B16 (Tex. App.CFort Worth 2002, no pet.) (holding appellant did not preserve error as to motion for mistrial regarding prosecution=s closing argument because appellant did not request mistrial until after jury began deliberating); Ponce v. State, 68 S.W.3d 718, 721 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (stating that motion for mistrial made after the jury returned a guilty verdict is untimely).  Accordingly, we overrule appellant=s third issue.

Ex Post Facto Arguments

In his fourth issue, appellant argues that the trial court erred in allowing the State to introduce evidence of the previous charge filed against him in 1982 because the application of the 1993 amendment to Article 37.07 of the Texas Code of Criminal Procedure violates the Ex Post Facto Clause of the United States Constitution.  See U.S. Const. art. I, ' 9; Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1).  Appellant claims that the application of the 1993 amendments to this statute violates the Ex Post Facto Clause because at the time of the alleged extraneous offense, such offenses were not admissible in the punishment phase of a noncapital case. 

An ex post facto law is one that (1) punishes as a crime an act previously committed, which was innocent when done; (2) makes more burdensome the punishment for a crime, after its commission; or (3) deprives one charged with a crime of any defense available according to law at the time the act was committed.  Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 2298, 53 L. Ed. 2d 344 (1977). A statute is procedural if it does not punish an act that was innocent when done, does not increase punishment for a crime after its commission, and does not lessen the State=s burden of proof.  See Collins v. Youngblood, 497 U.S. 37, 51B52, 110 S. Ct. 2715, 2724, 111 L. Ed. 2d 30 (1990); Ex parte Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993).  A procedural change in a statute is not an ex post facto violation, even though it may work to a defendant's disadvantage.  Brooks v. State, 822 S.W.2d 765, 769 (Tex. AppCHouston [1st Dist.]), pet. granted on other grounds and remanded, 854 S.W.2d 659 (Tex. Crim. App. 1992).  Procedural statutes generally control litigation from their effective date and apply to litigation that is pending.  See Wade v. State, 572 S.W.2d 533, 534 (Tex. Crim. App. 1978); Carter v. State, 813 S.W.2d 746, 747B48 (Tex. App.CHouston [1st Dist.] 1991, no pet.).  Because article 37.07 ' 3(a) is a rule of evidence which affects only trial procedure and does not do any of the things prohibited by the Ex Post Facto Clause of the United States Constitution, the application of the statute does not violate this constitutional provision.  See Barletta v. State, 994 S.W.2d 708, 710B12 (Tex. App.CTexarkana 1999, pet. ref=d) (holding that article 37.07 ' 3(a) did not violate the Ex Post Facto Clause of the United States Constitution by allowing admission in punishment phase of juvenile adjudications that are more than five years old); Carter, 813 S.W.2d at 747B48; Brooks, 822 S.W.2d at 769.  Accordingly, we overrule appellant=s fourth issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed November 4, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant also seems to assert on appeal that the trial court erred in admitting this evidence under Texas Rule of Evidence 404(b); however, appellant did not assert this complaint in the trial court and therefore has failed to preserve error.  McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998) (stating that error is forfeited when the complaint on appeal differs from the complaint at trial).

^[2]  Appellant also contends here that the prior incident is not similar to the one that is the subject of the present case.  First, he claims that the complaining witness in the prior case was only eleven years old, while the complainant in this case was fourteen or fifteen years of age.  Second, appellant argues that the prior incident involved an allegation of Aonly oral sex,@ while the present case involves allegations of sexual intercourse.  We are not persuaded by either of the distinctions on which appellant relies.  The trial court reasonably could have concluded that the incidents were similar because both allegations involve conduct prohibited under section 22.011 of the Texas Penal Code.