Chris Lonell Holloway v. the State of Texas ( 2022 )

Affirmed and Memorandum Majority and Concurring Opinions filed
November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00229-CR
CHRIS LONELL HOLLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1603520
MEMORANDUM MAJORITY OPINION
Appellant Chris Holloway appeals his conviction for aggravated sexual
assault of a child. A jury convicted appellant, found a punishment enhancement
paragraph true, and assessed punishment at imprisonment for life. In two issues,
appellant contends that the trial court erred in (1) not allowing the defense to
question another minor who testified appellant also sexually assaulted her
regarding her sexual assault by another individual and (2) accepting the jury’s
punishment verdict when the punishment verdict form was not signed by the jury
foreman. We affirm.
Background
Appellant was indicted for the offense of continuous sexual abuse of a child.
Complainant T.B., who was fourteen years old at the time of trial, testified
regarding the details of several sexual abuse events by appellant that allegedly
occurred when T.B. was between the ages of three and five. T.B.’s mother testified
regarding T.B.’s outcry statement, which occurred when T.B. was eleven. The
State also presented the testimony of another child, M.L., who stated appellant
sexually abused her around the same time as T.B., when she was also between the
ages of three and five.1
In a hearing outside the presence of the jury, the trial court considered
whether to permit the defense to cross-examine M.L. about her allegation that
another person, L.J., had sexually assaulted her when she was eleven. After hearing
testimony and argument, the trial court determined the line of questioning was
barred by Texas Rule of Evidence 412. At the conclusion of the guilt-innocence
portion of trial, the jury found appellant guilty of aggravated sexual assault of a
child.
At the conclusion of the punishment phase, in open court, the trial court
asked the jury foreman if the verdict on punishment was unanimous and the
foreman responded, “Yes, ma’am.” The judge then read the verdict, including that
the jury, having found appellant guilty and a punishment enhancement paragraph
true, assessed his punishment at imprisonment for life. No one for the defense or
on the jury raised any objections or complaints regarding this process. The
1
The details of the alleged abuse are well known to the parties and unnecessary to the
disposition of the issues raised in this appeal, so we will not recount them here.
2
punishment verdict form in the record contains the instruction “CHOOSE ONE” at
the top followed by five paragraphs of text, each containing a different punishment
verdict. The first paragraph of the form is circled—the one containing the finding
of the enhancement paragraph as true and the life-in-prison term—but the space
available for the foreman’s signature was left blank.
Exclusion of Evidence
As stated, in his first issue, appellant contends the trial court erred in
precluding him, pursuant to Rule 412, from cross-examining witness M.L. about
her allegation that another person, L.J., had also sexually assaulted her. Tex. R.
Evid. 412. We review a trial court’s decision to admit or exclude evidence under
an abuse-of-discretion standard and will not reverse the decision if it is within the
zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011). We must uphold the trial court’s decision if it is reasonably
supported by the record and correct under any theory of law applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Rule 412, entitled “Evidence of Previous Sexual Conduct in Criminal
Cases,” prohibits the admission of evidence regarding a victim’s previous sexual
conduct in certain types of cases unless it falls within one of five specified
exceptions. Only two of those exceptions are potentially relevant here: (1) whether
the proffered evidence relates to the motive or bias of the alleged victim and (2)
whether admission of the evidence is constitutionally required. See Tex. R. Evid.
412(b)(2)(C), (E). Even if the proponent of the evidence of past sexual conduct can
satisfy the burden to demonstrate the evidence’s relevance and an applicable Rule
412 exception, the evidence of specific instances of past sexual behavior still must
be excluded unless the probative value of the evidence outweighs the danger of
unfair prejudice. See id. at 412(b)(3).
3
The proponent of challenged evidence generally has the burden of
establishing the evidence’s admissibility by a preponderance of the evidence.
White v. State, 549 S.W.3d 146, 151–52 (Tex. Crim. App. 2018); Willis v. State,
No. 14-17-00559-CR, 2019 WL 1941067, at *7 (Tex. App.—Houston [14th Dist.]
Apr. 30, 2019, pet. ref’d) (mem. op., not designated for publication). Here,
appellant had the burden to demonstrate the admissibility of the evidence related to
M.L.’s other sexual assault allegation. Under the “motive or bias” exception,
appellant had to establish that the proffered evidence was probative on the issue of
M.L.’s motive or bias to make a false allegation of sexual assault against appellant
and that the evidence was more probative than prejudicial. See Willis, 2019 WL
1941067, at *7 (citing Montgomery v. State, 415 S.W.3d 580, 583 (Tex. App.—
Amarillo 2013, pet. ref’d)). Under the constitutionally-required exception,
appellant needed to establish that the Confrontation Clause required admission and
that the evidence was more probative than unfairly prejudicial. See id. (citing
Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016), and Lopez v. State, 18
S.W.3d 220, 225-26 (Tex. Crim. App. 2000)). To determine whether evidence
must be admitted under the Confrontation Clause, a trial court must balance the
defendant’s right to cross-examine and the probative value of the proffered
evidence against the risk factors associated with the evidence. Henley, 493 S.W.3d
at 95. Trial courts possess broad discretion to impose reasonable limits on cross-
examination to avoid harassment, prejudice, confusion of the issues, endangering
the witness, and the injection of cumulative or collateral evidence. Id.In his brief, appellant asserts that cross-examination of M.L. “could have
shown [she had] a bias or motive to claim” appellant had sexually assaulted her
and it “could have supported a theory that she might be mistaken in her belief that
appellant sexually abused her when . . . it was really this other person.” Appellant
4
does not explain in his brief how such cross-examination would have supported
either theory.
In the hearing outside the presence of the jury, M.L. testified that appellant
sexually assaulted her when she was between the ages of three and five, and L.J.
sexually assaulted her when she was eleven years old. She originally went to the
Children’s Assessment Center regarding the assault by appellant but subsequently
told her mother about the assault by L.J. and returned to the center. M.L. insisted
that she was not confused at all about the two incidents, appellant assaulted her
when she was aged three to five, L.J. assaulted her when she was eleven, and she
had no contact with appellant when she was eleven.
In argument to the trial court, defense counsel pointed out that M.L. was
very young (reportedly 3 to 5 years old) when appellant allegedly sexually
assaulted her, and counsel argued that “when you have a child that young,
memories get mixed up. Memories get confused.” While this might be reasonable
jury argument regarding why M.L.’s allegation against appellant might be suspect,
appellant did not explain how it necessitated admission of evidence that M.L. had
also been assaulted by L.J. years later. Defense counsel additionally referenced
M.L.’s living conditions, although no evidence was presented regarding those
conditions. Counsel noted that both of M.L’s outcry statements came around the
time that she was eleven years old and suggested she may have “switched” the
identity of the person who assaulted her but then felt that she could not retract her
statements. Other than the temporal proximity of the two outcry statements,
however, counsel did not point to any indication of such confusion. Indeed, as
stated above, M.L. expressly denied that she had any confusion regarding the two
incidents. Counsel’s rank speculation regarding the possibility of confusion is not
sufficient to establish bias or motive for Rule 412 purposes. Counsel also asserted
5
that M.L. first identified L.J. as a person who assaulted her and later identified
appellant, but that assertion is not supported by the record; indeed, the record
supports the opposite conclusion. Lastly, counsel suggested there were “a lot of
issues” with M.L.’s memory but did not cite specific examples.
Specifically regarding whether cross-examination based on M.L.’s
allegations against L.J. was constitutionally required, defense counsel argued only
that the testimony was required because the State identified the allegations as
“Brady” material. See generally Harm v. State, 183 S.W.3d 403, 405–06 (Tex.
Crim. App. 2006) (discussing State’s duty to disclose evidence favorable to a
defendant under Brady v. Maryland, 373 U.S. 83 (1963)). As the State pointed out
to the trial court, however, the mere fact the State identified the allegation of
another assault as potentially favorable to the defendant does not require its
admission. Brady is a case about disclosure of information, not admission of
evidence. See id. Appellant cites no authority and makes no argument to the
contrary.
We conclude that the trial court did not abuse its discretion when it barred
defense counsel from cross examining M.L. regarding her allegation that she was
sexually assaulted by L.J. several years after she was allegedly assaulted by
appellant. Appellant did not meet his burden to demonstrate the evidence was
admissible either because it showed bias or motive or because it was
constitutionally required. See Tex. R. Evid. 412(b)(2)(C), (E); see also Willis, 2019
WL 1941067, at *7 (holding defendant failed to meet his burden to demonstrate
evidence of another assault revealed either a bias against the defendant, a motive to
lie, or was constitutionally required); Woods v. State, 301 S.W.3d 327, 334–35
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding defendant “failed to
show in what way the previous assault show[ed] the complainant’s motive or bias,
6
if any” or that the evidence of the previous assault was “constitutionally required to
be admitted”).
We overrule appellant’s first issue.
Form of Verdict
In his second issue, appellant contends that the trial court erred in accepting
the jury’s punishment verdict when the verdict form was not signed by the jury
foreman. Appellant asserts that the lack of a signature on the form rendered the
verdict informal and, thus, the trial court had a duty pursuant to Texas Code of
Criminal Procedure article 37.10(a) to call the jury’s attention to the problem and,
if the jury consents, have the problem corrected. Tex. Code Crim. Proc. art.
37.10(a); see also Nixon v. State, 483 S.W.3d 562, 567 (Tex. Crim. App. 2016)
(explaining that article 37.10(a) imposes a duty to act on trial courts).2
In seeking to define what makes a verdict “informal” under article 37.10(a),
the Court of Criminal Appeals has looked to the definition provided in Black’s Law
Dictionary, which defines informal as “[n]ot done or performed in accordance with
normal forms or procedures.” Nixon, 483 S.W.3d at 566 (quoting Black’s Law
Dictionary 898 (10th ed. 2014)). The Court also noted in Nixon that it had
previously described an “informal verdict” as “one that does not meet the legal
requirements of being written or answered as authorized.” Id. (quoting Jennings v.
State, 302 S.W.3d 306, 307 (Tex. Crim. App. 2010)).
2
Article 37.10(a) provides in full as follows:
If the verdict of the jury is informal, its attention shall be called to it, and with its
consent the verdict may, under the direction of the court, be reduced to the proper
form. If the jury refuses to have the verdict altered, it shall again retire to its room
to deliberate, unless it manifestly appear that the verdict is intended as an
acquittal; and in that case, the judgment shall be rendered accordingly,
discharging the defendant.
7
Appellant does not cite any authority suggesting that the lack of a foreman’s
signature on the form rendered the verdict informal. The State points out that no
statute requires such a signature on a verdict form and all that is statutorily
required for a verdict is for it to be “a written declaration by a jury of its decision
of the issue submitted to it in the case.” Tex. Code Crim. Proc. art. 37.01. We note,
however, that the verdict form in this case in fact instructed the foreman to sign the
form in the space provided for the punishment determined by the jury.
However, even if we assume the verdict in this case was informal and the
trial court failed to perform its duty under article 37.10(a), our analysis does not
end there. See Williams v. State, No. 03-18-00267-CR, 2018 WL 3451635, at *13
(Tex. App.—Austin July 18, 2018, pet. ref’d) (mem. op., not designated for
publication) (assuming verdict was informal without deciding); Herod v. State, No.
14-12-00645-CR, 2013 WL 5760739, at *5 (Tex. App.—Houston [14th Dist.] Oct.
22, 2013, pet. ref’d) (mem. op., not designated for publication) (same). Under our
prior precedent, in determining whether a trial court reversibly erred in failing to
correct an informal verdict, we keep in mind that a jury’s verdict generally should
be upheld if the jury’s intention can be reasonably ascertained. See Perez v. State,
21 S.W.3d 628, 631 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see also
Williams, 2018 WL 3451635, at *13 (following Perez); Herod, 2013 WL 5760739,
at *5 (same); Rains v. State, No. 12-11-00135-CR, 2012 WL 1515074, at *6–7
(Tex. App.—Tyler Apr. 30, 2012, pet. ref’d) (mem. op., not designated for
publication) (same); Martinez v. State, No. 04-09-00020-CR, 2009 WL 2882934,
at *2–3 (Tex. App.—San Antonio Sept. 9, 2009, no pet.) (mem. op., not designated
for publication) (same). Such error is nonconstitutional in nature and requires
reversal only if it affects a substantial right of the defendant. See Herod, 2013 WL
5760739, at *5; Perez, 21 S.W.3d at 631. Verdict forms should be reasonably and
8
liberally, rather than strictly, construed, and when a finding of the jury can be
reasonably ascertained, the verdict is sufficient. See Perez, 21 S.W.3d at 631.
As mentioned above, in the present case, after receiving the verdict form, the
trial judge asked the jury foreman if the verdict was unanimous, and the foreman
responded, “Yes, ma’am.” The judge then read the verdict aloud, including that the
jury assessed appellant’s punishment at imprisonment for life. No one for the
defense or on the jury raised any objections or complaints regarding the verdict so
announced. Although the foreman failed to sign the space available for his
signature, the first paragraph of the verdict form is clearly circled, indicating the
jury chose the punishment the trial court had read aloud, life in prison.
Under these circumstances, the jury’s intention can be reasonably
ascertained and the verdict should be upheld. See Herod, 2013 WL 5760739, at *5;
Perez, 21 S.W.3d at 631. Appellant was not harmed by the trial court’s failure to
follow the article 37.10(a) procedure. Accordingly, we overrule appellant’s second
issue.
We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain. (Spain,
J., concurring).
Do Not Publish — TEX. R. APP. P. 47.2(b).
9