Maurice Lemar Doss v. the State of Texas ( 2022 )

AFFIRMED and Opinion Filed August 2, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00533-CR
MAURICE LEMAR DOSS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1841666-W
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Schenck
Appellant Maurice Lemar Doss appeals his conviction for aggravated sexual
assault of a child by contact. In five issues, appellant urges the trial court erred by
(1) excusing certain venirepersons for cause, (2) allowing the forensic interviewer
to testify as the outcry witness, (3) admitting the complainant’s patient history, (4)
instructing the jury that it could consider evidence of extraneous offenses as
character conformity evidence, and (5) admitting extraneous offense evidence
obtained from a laptop computer. We affirm the trial court’s judgment. Because all
issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was charged by indictment with aggravated sexual assault of a child
by contact or penetration. The offense was alleged to have occurred on September
2, 2018, against K.S., a seven-year old girl who appellant and his now ex-wife, M.C.,
were fostering. Appellant pleaded not guilty, and the case proceeded to a jury trial.
The State abandoned the penetration allegation, and the jury found appellant guilty
of aggravated sexual assault of a child by contact and assessed punishment at forty-
five years’ confinement. This appeal followed.
DISCUSSION
I. Jury Selection
In his first issue, appellant asserts the trial court erred by excusing several
potential jurors for cause. More particularly, appellant claims the trial court
improperly struck the venirepersons who indicated they would refuse to convict on
the testimony of one witness.
A. Standard of Review
We review a trial court’s ruling on a challenge for cause with “considerable
deference” because the trial court is in the best position to evaluate the
venireperson’s demeanor and responses. See Blue v. State, 125 S.W.3d 491, 497
(Tex. Crim. App. 2003). We reverse a trial court’s ruling on a challenge for cause
only upon a clear abuse of discretion. Id.–2–
B. Applicable Law
The State may challenge for cause a venireperson that has a “bias or prejudice
against any phase of the law upon which the State is entitled to rely for conviction
or punishment.” TEX. CODE CRIM. PROC. ANN. art. 35.16(b)(3). The State can
properly challenge venirepersons who state they could not convict based upon one
witness whom they believed beyond a reasonable doubt and whose testimony proved
every element of the indictment beyond a reasonable doubt. Lee v. State, 206 S.W.3d
620, 623 (Tex. Crim. App. 2006); Tucker v. State, No. 05-19-01515-CR, 2022 WL
1564554, at *8 (Tex. App.—Dallas May 18, 2022, no pet.) (mem. op., not designated
for publication). Therefore, to the extent the trial court struck venirepersons for
cause due to their positions on the one-witness rule, we conclude it did not abuse its
discretion.
Assuming the trial court erred in striking venirepersons for cause, we would
nevertheless conclude the error was harmless. The purpose of challenges for cause
is to remove jurors who are not qualified. Ford v. State, 73 S.W.3d 923, 925 (Tex.
Crim. App. 2002) (plurality op.). There is no right to have a particular person on the
jury. Jones v. State, 982 S.W.2d 386, 393–94 (Tex. Crim. App. 1998). Therefore,
error in granting a challenge for cause requires reversal only if the defendant was
deprived a lawfully constituted jury. Id. at 393. When there is no indication in the
record that the jurors who actually served were not fit, a defendant is not harmed by
error in granting a challenge for cause. Ford, 73 S.W.3d at 925. Because appellant’s
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complaint concerns only venirepersons that did not sit, he does not complain he was
deprived a lawfully constituted jury and the record in this case does not show
appellant was deprived of a lawfully constituted jury. Error, if any, is therefor
harmless. We overrule appellant’s first issue.
II. Outcry Witness
In his second issue, appellant urges the trial court erred in concluding the
forensic interviewer who interviewed K.S. at the Child Advocacy Center was the
outcry witness, rather than M.C. Thus, claims appellant, the forensic interviewer’s
testimony concerning statements made by K.S. was inadmissible hearsay.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.
2010). We will not reverse a trial court’s ruling if it is within the zone of reasonable
disagreement. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).
B. Applicable Law
Hearsay is not admissible except as provided by statute or the rules of
evidence. TEX. R. EVID. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App.
1990). Article 38.072 of the Texas Code of Criminal Procedure provides a hearsay
exception for statements made by a child abuse victim and is commonly known as
the “outcry exception.” CRIM. PROC. art. 38.072.
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Article 38.072, section 2(a), requires that for the complainant’s hearsay
statement to be admissible, such a statement must be made to the first person, 18
years of age or older, other than the defendant, to whom the complainant, in some
discernible manner, described the alleged offense. Id. art. 38.072(2)(a); see also
Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The complainant’s
statement describing the alleged offense must be more than words that give a general
allusion that something of the nature of child abuse was taking place. Garcia, 792
S.W.2d at 91. Moreover, the trial court is afforded broad discretion to determine
whether the complainant’s statement falls within the article 38.072 hearsay
exception. Id. at 92. The exercise of that discretion will not be disturbed unless the
record shows a clear abuse of discretion. Id.C. Application of Law to Facts
The trial court held a hearing outside the presence of the jury to determine
whether M.C. or the forensic interviewer was the outcry witness. At the hearing,
M.C. testified that on the morning of September 2, 2018, she discovered appellant
and K.S. in one of their home’s bedrooms. Appellant had no clothes on, and K.S.
was dressed only from the waist up. K.S. was lying on the floor on her back, and
appellant was kneeling over her. Appellant told M.C. that K.S. “bust into the room”
while he was getting dressed and complained about a burning sensation, so he was
applying Neosporin to the area about which she complained. K.S. stated that this
was not true. M.C. immediately removed K.S. from the room, took her to her sister’s
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home, and then to the hospital. The only detail K.S. relayed to M.C. was that
appellant “put his bottom on her bottom.” The forensic interviewer testified
extensively to the specific details of abuse that K.S. relayed to him during the
interview.
The record before us demonstrates that the forensic interviewer, and not M.C.,
was the first person over 18 years of age to whom K.S. gave numerous specific
details of her sexual abuse. Under the interpretation given to article 38.072 in
Garcia, we conclude that the forensic interviewer was the proper “outcry witness”
to whom the statutory exception regarding a hearsay statement of a child applies.
See Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.—Houston [14th Dist.] 1996,
pet. ref’d) (although the school counselor was the first person the complainant told
about the sexual abuse, there is no evidence that the complainant described to her
the details of the abuse); see also Buentello v. State, 512 S.W.3d 508, 517 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (forensic interviewer was proper outcry
witness because the child used only general terms in telling her parents about the
sexual assault). We overrule appellant’s second issue.
III. Patient History
In his third issue, appellant claims the trial court erred in allowing Kristen
Reeder, M.D., a child abuse pediatrician at Children’s Medical Center, to testify over
his hearsay objection to the information M.C. provided to the examining nurse at
Children’s Medical Center about why she brought K.S. to the hospital. In response,
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the State points out the complained of statement was previously admitted into
evidence without objection through the admission of the hospital emergency room
record for K.S.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez, 327 S.W.3d at 736. If a trial court’s ruling is within the
zone of reasonable disagreement, there is no abuse of discretion. Gonzalez, 544
S.W.3d at 370.
B. Applicable Law
Hearsay is not admissible unless a statute, rule of evidence or other rules
prescribed under statutory authority provide otherwise. EVID. 802. There are
numerous exceptions to hearsay, including an exception for statements made for, as
are reasonably pertinent to, medical diagnosis or treatment and describes medical
history, or past or present symptoms or sensations, their inception and their general
cause. EVID. 803(4). This exception is based on the assumption that the patient
understands the importance of being truthful with the medical personnel involved to
receive an accurate diagnosis or treatment. Bautista v. State, 189 S.W.3d 365, 368
(Tex. App.—Fort Worth 2006, pet. ref’d). The party offering evidence under rule
803(4) must show the out-of-court declarant was aware that the statements were
made for the purpose of medical diagnosis or treatment, that proper diagnosis or
treatment depends on the veracity of such statements, and that it was reasonable for
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the therapist to rely on the particular information. Taylor v. State, 268 S.W.3d 571,
589, 591 (Tex. Crim. App. 2008).
C. Application of Law to Facts
M.C. was the caretaker of K.S. She took K.S. to the hospital for the purpose
of having a medical professional examine her for sexual abuse, to make a diagnosis,
and to treat her. In connection therewith, she made a statement to the nurse regarding
what she saw appellant doing to K.S.
Dr. Reeder testified that the sexual assault examination begins with obtaining
information usually from the child’s caregiver regarding the medical history of the
child. The examiner also asks about family and social history to understand the
environment that the child is living in and then asks questions about why they
presented to the clinic to help guide the medical-decision making process for the
child, including whether tests, medications, or treatments are needed. A physical
exam then follows. Dr. Reeder then summarized the history that M.C. gave to the
nurse, including the sexual conduct.
The State established through Dr. Reeder’s testimony that M.C.’s statements
to the nurse at Children’s Hospital, as shown in the hospital record, were relevant to
diagnosis or treatment of K.S. and thus were admissible under rule 803(4) of the
rules of evidence. We overrule appellant’s third issue.
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IV. Jury Instruction
In his fourth issue, appellant asserts the trial court erred in instructing the jury
that it could consider evidence of extraneous offenses as character conformity
evidence. He contends that because the State abandoned the penetration allegation
at the close of evidence, the requirements of article 38.37 of the code of criminal
procedure were not met. The State asserts appellant’s complaint on appeal does not
comport with his objection at trial, and, thus, he has waived this complaint.
A. Preservation of Error
An issue on appeal must present the same legal theory as was presented to the
trial court through a timely, specific objection. Sterling v. State, 800 S.W.2d 513,
520–21 (Tex. Crim. App. 1990). We may not reverse the trial court decision on a
legal theory not presented to the trial court. Hailey v. State, 87 S.W.3d 118, 121–22
(Tex. Crim. App. 2002).
Appellant’s complaint on appeal does not comport with his objection in the
trial court. He did not argue that because the State abandoned the penetration
allegation, the requirements of article 38.37 were not met. Thus, appellant waived
this complaint. Even assuming appellant preserved his complaint for review, we
conclude the trial court did not err in including the complained of instruction.
B. Standard of Review
We review claims of jury charge error under the two pronged test set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we determine
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if there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005). Then, if we find error, we analyze that error for harm. Id.C. Applicable Law
An extraneous offense is defined as any act of misconduct, whether resulting
in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953
S.W.2d 740, 741 (Tex. Crim. App. 1996). Under rule 404, evidence of other crimes,
wrongs, or bad acts is inadmissible if it is offered to prove the character of a person
in order to show action in conformity therewith, but it may be admissible for other
purposes, such as proving motive, opportunity, intent, identity, absence of mistake
or accident, or to rebut a defensive theory. EVID. 404(b).
Where the charged offense is a sexual offense against a child under chapter
21 and 22 of the penal code, such as contact or penetration, article 38.37 of the code
of criminal procedure allows evidence of other crimes, wrongs, or acts committed
by the defendant against a child. More particularly, article 38.37 provides:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by a defendant
against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including: (1) the state of
mind of the defendant and the child, and (2) the previous and
subsequent relationship between the defendant and the child.
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
subject to Section 2–a, evidence that the defendant has committed a
separate offense described by Subsection (a)(1) or (2) may be admitted
in the trial of an alleged offense described in Subsection (a)(1) or (2)
for any bearing the evidence has on relevant matters, including the
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character of the defendant and acts performed in conformity with the
character of the defendant.
Id. §§ 1(b) and 2(b) (emphasis added).
D. Application of Law to Facts
In this case, the charged offense is subject to article 38.37. K.S. testified that
appellant committed sexual acts against her on occasions other than the one that led
M.C. to intervene. K.S. described some of these acts to the forensic interviewer.
This evidence was admissible to show that, with respect to the charged offense,
appellant was not applying ointment to K.S. as he claimed, and that his state of mind,
intent, and motive was to commit sexual assault. This evidence was also admissible
under article 38.37 to show appellant performed acts in conformity with his
character.
The trial court gave the following limiting instructions to the jury with respect
to the extraneous offense evidence:
You are instructed that you may not consider the defendant’s
commission of crimes, wrongs, or acts not alleged in the indictment,
unless you first find and believe beyond a reasonable doubt that the
defendant committed such crimes, wrongs, or acts. Even then, you may
only use that evidence for the limited purpose for which it was
admitted; as instructed below.
You are instructed that if there is any evidence before you in this case
regarding other crimes, wrongs, or acts committed by the defendant
against K.S. you may consider such evidence for its bearing on relevant
matters, including the state of mind of the defendant and K.S., and the
previous or subsequent relationship between the defendant and K.S.
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You are instructed that if there is any evidence before you in this case
that the defendant committed the separate offense(s) of Aggravated
Sexual Assault of a Child; you may consider such evidence for its
bearing on relevant matters, including the character of the defendant,
and acts performed in conformity with the character of the defendant.
You are instructed that if there is any evidence before you in this case
regarding the defendant having committed other crimes, wrongs, or bad
acts, you may consider such evidence only in determining the intent,
knowledge, absence of mistake, or lack of accident of the defendant,
and for no other purpose.
These instructions are in material compliance with rule 404(b) and article 38.37 and,
thus, the trial court did not err in instructing the jury with respect to extraneous
offenses. See Price v. State, No. 05-18-002433-CR, 2019 WL 2223600, at *5 n.4
(Tex. App.—Dallas May 23, 2019, pet. ref’d) (not designated for publication). We
overrule appellant’s fourth issue.
V. Extraneous Evidence
In his fifth issue, appellant urges the trial court erred by admitting extraneous
offense evidence during the punishment phase of trial, specifically images of child
pornography that were seized from a computer appellant and M.C. had access to.
Appellant contends there was no evidence identifying appellant as the one who
possessed the images.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez, 327 S.W.3d at 736. If a trial court’s ruling is within the
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zone of reasonable disagreement, there is no abuse of discretion. Gonzalez, 544
S.W.3d at 370.
B. Applicable Law
During the punishment phase of trial, evidence may be offered by the State
and the defendant as to any matter the court deems relevant to sentencing, including,
but not limited to, the prior criminal record of the defendant, his general reputation,
his character, an opinion regarding his character, any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant. CRIM. PROC. art. 37.07; Rogers v. State, 991 S.W.2d
263, 265 (Tex. Crim. App. 1999). Thus, extraneous offense evidence is admissible
at the punishment phase.
C. Application of Law to Facts
The trial court held a hearing during the guilt–innocence phase of trial at
which M.C. and Detective Quigley testified. M.C. established she owned a Toshiba
laptop computer before she married appellant. After she married appellant in
January 2016, appellant created a separate password protected account on the
computer.
Detective Chris Quigley conducted a forensic examination of the computer on
December 9, 2019. The computer extraction report indicated that there were two
users on the account, appellant and M.C. The last login for M.C. was December 24,
2015, at 7:10 p.m. The last login for appellant was March 4, 2016, at 3:12 p.m.
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Appellant did not logout of the computer, and no one else logged into the computer
after appellant. The search history showed a search for “sleep incest” on March 19,
2016, at 2:53 p.m., and a search for “real father/daughter sex” on March 19, 2016,
at 2:58 p.m. Images were also accessed on that day of what appear to be children,
mostly young girls, of unknown ages. The images were in unallocated space,
meaning Detective Quigley was not able to determine who actually accessed those
images, but appellant was the only user that was logged into the account on March
19, 2016.
The State sought to admit the evidence retrieved from the computer under
rules of evidence 404(b) and 403. The court ruled that this evidence was
inadmissible at the guilt–innocence phase of trial, but admissible at the punishment
phase.
The evidence extracted from the computer was relevant to the issue of
punishment. Strong circumstantial evidence connected appellant to the images and
searches. Thus, the trial court did not abuse its discretion in admitting the computer
evidence. With respect to Detective Quigley’s testimony, it was for the jury to
determine whether the State proved beyond a reasonable doubt that appellant
committed the bad act(s), and it was for the jury to determine the weight to give that
evidence. Hammock v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021). We
overrule appellant’s fifth issue.
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CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
210533F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAURICE LEMAR DOSS, On Appeal from the 363rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1841666-W.
No. 05-21-00533-CR V. Opinion delivered by Justice
Schenck. Justices Osborne and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 2nd day of August, 2022.
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