Kevin Dane Norris v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00298-CR
___________________________
KEVIN DANE NORRIS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1799027
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
A jury convicted Appellant Kevin Dane Norris of one count of continuous
sexual abuse of a young child and one count of sexual assault of a child. See Tex.
Penal Code Ann. §§ 21.02(b), 22.011(a)(2). On appeal, Norris argues in four issues
that the trial court reversibly erred by (1) admitting over Norris’s Rule 403 objection
State’s Exhibit Seventeen, which consists of seventy-eight pages of photographed text
messages between Norris and the complainant, P.B.;1 (2) admitting certain hearsay
statements that allegedly did not fit within the exceptions under which they were
admitted; and (3) denying his motion for directed verdict. We will affirm.
I. BACKGROUND
P.B. testified that Norris, her stepfather, began sexually assaulting her when she
was eight years old.2 According to P.B., the first assault occurred after she was
awakened one night by Norris entering her bedroom. Norris, who was drunk, put his
hand down P.B.’s pants and touched her vagina. P.B., pretending to be asleep, kept
her eyes closed and did not tell anyone what had happened.
1
We use initials to refer to the complainant. See Tex. R. App. P. 9.10(a)(3).
P.B. was born in August 2005, which means that the abuse began somewhere
2
between 2013 and 2014.
2
P.B. recalled that Norris attempted to assault her again approximately ten to
twelve months later, but she kicked him off before he could touch her vagina again.
After that unsuccessful attempt, Norris paused his assaults for a while.
P.B. testified that Norris began consistently assaulting her when she was about
twelve years old. Typically, when Norris was alone in the house with P.B. or when
everyone else was asleep, he would tell her to “get ready,” which meant for P.B. to
stop whatever she was doing, get undressed, and go into her bedroom or the
bathroom where Norris would perform oral sex on her, make her perform oral sex on
him, or penetrate her vagina with his penis. The assaults continued through the
summer of 2020 when P.B. was fourteen or fifteen years old.
P.B. expressed that she had no intention of telling anyone about the abuse, but
it came to light in September 2020 after P.B.’s younger brother alleged that P.B had
sexually abused him. During the investigation into her brother’s allegations, P.B. told
her mother about what Norris had done to her.
In October 2020, P.B.’s mother took her to see Bren Ledbetter, a certified
sexual assault nurse examiner (SANE), for an examination. 3 Based on her
examination, Ledbetter came to the conclusion that P.B. had been sexually abused.
After hearing all the evidence, the jury found Norris, who had been charged in
a seven-count indictment, guilty of Count One (continuous sexual abuse of a young
child) and Count Seven (sexual assault of a child) and assessed his punishment at life
3
Ledbetter testified that P.B. would not agree to a full physical exam.
3
in prison on Count One and twenty years in prison plus a $10,000 fine on Count
Seven. This appeal followed.
II. DISCUSSION
A. Issue One: State’s Exhibit Seventeen
In his first issue, Norris contends that the trial court abused its discretion by
admitting State’s Exhibit Seventeen because its probative value was substantially
outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. But Norris
failed to preserve this complaint.
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse-
of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Thus, we will not
reverse a such decision unless the record shows a clear abuse of discretion. Zuliani, 97
S.W.3d at 595. An abuse of discretion occurs only when the trial court’s decision was
so clearly wrong as to lie outside that zone within which reasonable persons might
disagree. Id.Even if a trial court improperly admits evidence, such an error generally does
not warrant reversal unless it affects an appellant’s substantial rights. See Tex. R. App.
P. 44.2(b). “A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010). Improperly admitted evidence that did not
4
influence the jury or had but a slight effect on the verdict is harmless. Id. Further, a
trial court’s error in improperly admitting evidence may be rendered harmless if other
evidence that proves the same facts as the inadmissible evidence is admitted without
objection. See Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App. 2003).
2. Norris Failed to Preserve His Complaint
To preserve a complaint for appellate review, the record must show that a
specific and timely objection was made to the trial judge and that the judge ruled on
the objection. Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim.
App. 2009); Smith v. State, 256 S.W.3d 341, 343 (Tex. App.—San Antonio 2007, no
pet.) (mem. op.). “When an exhibit contains both admissible and inadmissible
evidence, the burden is on the objecting party to specifically point out which portion
is inadmissible.” Kelso v. State, 562 S.W.3d 120, 136 (Tex. App.—Texarkana 2018, pet.
ref’d) (citing Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009)). In the
absence of a specific objection, “[a] trial court is not obligated to search through an
exhibit and segregate the admissible evidence from the inadmissible” and “may safely
admit it or exclude it all.” Id. When this occurs, “the losing party, no matter who he
is, will be made to suffer on appeal the consequences of his insufficiently specific
offer or objection.” Id. (quoting Richter v. State, 482 S.W.3d 288, 298 (Tex. App.—
Texarkana 2015, no pet.)); see Fears v. State, 479 S.W.3d 315, 334 (Tex. App.—Corpus
Christi–Edinburg 2015, pet. ref’d) (citing Willover v. State, 70 S.W.3d 841, 847 (Tex.
Crim. App. 2002)).
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As noted above, State’s Exhibit Seventeen consists of seventy-eight pages of
photographed text messages between Norris and P.B. that were taken from P.B.’s
phone. Norris, contending that the danger of unfair prejudice substantially
outweighed this exhibit’s probative value, objected to its admission on Rule 403
grounds. See Tex. R. Evid. 403. But although he was given the opportunity to object
to specific portions of the exhibit, Norris declined to do so:
[DEFENSE COUNSEL]: We did have an opportunity to discuss
whether or not photos of text messages from [P.B.]’s phone will be
admitted into evidence by the State.
....
We did have an opportunity by way of email to respond to the
State through an email that was sent to me and to [my co-counsel] by
[the prosecutor] to give us an opportunity to pick out statements that we
thought were harmful and have an opportunity to make further
objections to -- likewise, the Court also gave us that opportunity to do
that this morning, and for strategic purposes, we’ve decided we do not
want to do that. The only objection that we’ll use is 403, the prejudicial
effect outweighs the probative value.
That’s all.
THE COURT: Thank you.
Because Norris failed to specifically identify which portions of Exhibit
Seventeen he believed were inadmissible and to request that the State segregate the
admissible portions, if any, from the inadmissible portions, his trial objection was
insufficient to preserve any Rule 403 error regarding the photographed text messages.
See Kelso, 562 S.W.3d at 136; Fears, 479 S.W.3d at 334. Accordingly, we hold that the
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trial court did not abuse its discretion by admitting State’s Exhibit Seventeen in its
entirety, and we overrule Norris’s first issue.4
B. Issues Two and Three: Hearsay Complaints
In his second and third issues, Norris asserts that the trial court abused its
discretion by admitting evidence containing P.B.’s hearsay statements even though the
hearsay statements allegedly did not fit within the exceptions under which they were
admitted. But even assuming that the trial court abused its discretion by admitting the
complained-of statements, we conclude that the error was harmless.
As noted above, error in the admission of evidence is subject to harmless-error
analysis, Tex. R. App. P. 44.2(b), and a trial court’s error in improperly admitting
evidence may be rendered harmless if other evidence that proves the same facts as the
inadmissible evidence is admitted without objection, see Valle, 109 S.W.3d at 509–10;
4
In his briefing, Norris asserts that the photographed texts lack probative value
because they “do not depict the scene of the offense[ or] . . . the scene of the arrest”
and are “not evidence of the alleged violations of law.” But Norris cites no authority
to support his implied contention that evidence lacks probative value unless it meets
one of these criteria. See Tex. R. App. P. 38.1(i). Rather, as the State explains, because
Norris’s defense theory was fabrication and there was no physical evidence or
eyewitness testimony to corroborate P.B.’s account, the photographed text messages
were highly probative because they corroborated elements of P.B.’s testimony,
including that Norris had supplied her with “vapes.” Further, neither Norris’s trial
objection nor his brief explains how any specific statement or language contained
within Exhibit Seventeen created a danger of unfair prejudice; rather, in his brief,
Norris vaguely asserts that the text messages “could have caused . . . emotional
hostility towards [him].” Accordingly, in addition to being unpreserved, Norris’s first
issue is inadequately briefed and unmeritorious. See id.; see also Tex. R. Evid. 403; James
v. State, 623 S.W.3d 533, 547 (Tex. App.—Fort Worth 2021, no pet.) (outlining Rule
403 balancing test).
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Cochran v. State, No. 02-23-00034-CR, 2023 WL 7037625, at *2 (Tex. App.—Fort
Worth Oct. 26, 2023, no pet.) (mem. op., not designated for publication); Mendoza v.
State, 69 S.W.3d 628, 634 (Tex. App.—Corpus Christi–Edinburg 2002, pet. ref’d)
(citing Huff v. State, 560 S.W.2d 652, 653 (Tex. Crim. App. [Panel Op.] 1978)). In
sexual-assault cases, error in admitting a complainant’s hearsay statement is rendered
harmless when the complainant herself testifies regarding the same subject matter. See
Poole v. State, 974 S.W.2d 892, 899 (Tex. App.—Austin 1998, pet. ref’d).
The hearsay statements about which Norris complains were included in the
testimony of P.B.’s mother and SANE Nurse Ledbetter. P.B.’s mother, who was
designated as an outcry witness, see Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3),
testified that P.B. had told her that Norris had begun touching her when she was eight
years old and that he had graduated to “penetration,” which P.B.’s mother understood
to mean penile intercourse, when P.B. was twelve. She also testified that P.B. had told
her that the last assault occurred when P.B. was fifteen and that the assaults had
occurred in the bathroom of the family’s home or in P.B.’s bedroom. The trial court
admitted this testimony under the outcry-witness exception to the hearsay rule. See id.
art. 38.072, § 2(b); Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005).
Ledbetter testified that during her examination, P.B. had told her, among other
things, that “[she] always went to [Norris] if [she] wanted something” and that Norris
would buy her nicotine and marijuana in exchange for sex. This testimony was
8
admitted under Rule 803(4) as a statement made for medical diagnosis or treatment.
See Tex. R. Evid. 803(4).
On appeal, Norris contends that P.B.’s out-of-court statements contained in
the above-described testimony did not fit within the hearsay exceptions under which
they were admitted. Assuming the trial court erroneously admitted the evidence,
because P.B. herself testified regarding the same subject matter, any error in the
admission of the hearsay statements was rendered harmless. See Poole, 974 S.W.2d at
899. At trial, P.B. testified extensively and in great detail about the sexual abuse that
she suffered at Norris’s hands. In particular, she recounted how Norris had begun
touching her when she was eight years old, had graduated to penile penetration when
she was around twelve years old, and had continued to abuse her until she was
approximately fifteen years old. She also testified that Norris had supplied her with
marijuana and had given her “vapes,” money, and transportation in exchange for
sexual favors.
Because P.B. testified in court—where she was under oath and subject to
cross-examination—regarding the same facts contained in the complained-of hearsay
statements, any error in the admission of these out-of-court statements was harmless.
See id.; see also Thompson v. State, 665 S.W.2d 188, 190 (Tex. App.—Houston [1st Dist.]
1984, pet. ref’d) (holding doctor’s testimony regarding complainant’s out-of-court
statements was harmless because the complainant had testified in court under oath
9
and was subject to cross-examination regarding the same facts). Accordingly, we
overrule Norris’s second and third issues.
C. Issue Four: Legal Sufficiency of the Evidence
In his fourth issue, Norris argues that the trial court erred by denying his
motion for directed verdict. We disagree.
1. Standard of Review
We treat an appellate complaint concerning a trial court’s denial of a motion for
directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v.
State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
When conducting an evidentiary-sufficiency review, we view all the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could have found the crime’s essential elements beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d
616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder’s
responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
2021). We may not re-evaluate the evidence’s weight and credibility and substitute
our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
10
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State, 569
S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a
‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
2. Elements of the Offenses
A person who is seventeen years of age or older commits the offense of
continuous sexual abuse of a young child if, during a period that is thirty days or more
in duration, the person commits two or more acts of sexual abuse against a child
younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b). An “act of
sexual abuse” includes, among other things, indecency with a child, sexual assault,
aggravated sexual assault, and sexual performance by a child.5 Id. § 21.02(c)(2)–(4),
Count One of the indictment alleged that Norris
5
on or about the 4th day of August 2013, through the 3rd day of August
2019, during a period of time that is 30 days or more in duration, did
commit two or more acts of sexual abuse against a child or children
younger than 14 years of age, including an act constituting the offense of
aggravated sexual assault of a child against [P.B.], by causing the sexual
organ of [P.B.] to contact the sexual organ of [Norris] and/or by
contacting the sexual organ of [P.B.] with the mouth of [Norris] and/or
by causing the mouth of [P.B.] to contact the sexual organ of [Norris]
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(6). “Although the exact dates of the acts of sexual abuse need not be proven, the
offense of continuous sexual abuse of a child does require proof that one act of sexual
abuse occurred on at least the [twenty-ninth] day after the day of another act of sexual
abuse.” Lawson v. State, No. 02-17-00201-CR, 2018 WL 1192478, at *4 (Tex. App.—
Fort Worth Mar. 8, 2018, no pet.) (per curiam) (mem. op., not designated for
publication) (citing Tex. Penal Code Ann. § 21.02(d)). But “members of the jury are
not required to agree unanimously on which specific acts of sexual abuse were
committed by the defendant or the exact date[s] when those acts were committed.”
Id.A person commits the offense of sexual assault of a child by, among other
things, intentionally or knowingly causing “the penetration of the anus or sexual organ
of a child by any means.” 6 Tex. Penal Code Ann. § 22.011(a)(2)(A). This conduct
constitutes sexual assault regardless of whether the actor knows the child’s age at the
time of the offense. Id.and/or an act constituting the offense of indecency with a child [via]
sexual contact against [P.B.], by touching, including over the clothing,
the genitals of [P.B.] and/or by causing [P.B.] to touch any part of the
genitals of [Norris.]
6
Count Seven of the indictment alleged that Norris “on or about the 4th day of
August 2019, [did] intentionally or knowingly cause the sexual organ of [Norris] to
penetrate the sex organ of [P.B.], a child younger than 17 years of age, regardless of
whether [Norris] knew the age of [P.B.].”
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3. Analysis
Norris argues that the evidence was legally insufficient to support the jury’s
verdict because (1) P.B. had a motive to lie; (2) no physical evidence corroborated
P.B.’s testimony; (3) P.B.’s mother did not qualify as an outcry witness; and (4) P.B.’s
testimony was too vague because she did not provide specific dates and times that the
abuse occurred.7 Norris’s legal-insufficiency argument lacks merit.
First, whether P.B. had a motive to lie goes to her credibility. But in our legal-
sufficiency review, we may not re-evaluate the evidence’s weight and credibility or
substitute our judgment for the jury’s. Queeman, 520 S.W.3d at 622. Because the
7
As the State points out, Norris cited no legal authority establishing that any of
his enumerated complaints render the evidence legally insufficient to support the trial
court’s judgment. Thus, he has arguably forfeited his fourth issue due to inadequate
briefing. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim.
App. 2011) (holding that appellant’s point of error was “inadequately briefed and
presents nothing for review as this Court is under no obligation to make appellant’s
arguments for her”); Jessop v. State, 368 S.W.3d 653, 681, 685 (Tex. App.—Austin
2012, no pet.) (holding that because appellant failed to proffer any argument or
authority with respect to his claims, he waived any error due to inadequate briefing);
Ochoa v. State, 355 S.W.3d 48, 56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(“An appellant waives an issue on appeal if he fails to adequately brief that issue by
presenting supporting arguments and authorities.”). But because Norris’s fourth issue
lacks merit, we overrule it on that basis. See Zermeno v. State, No. 14-19-00789-CR,
2021 WL 4472528, at *3 n.4 (Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no
pet.) (mem. op., not designated for publication) (exercising discretion to address issue
on the merits despite appellant’s inadequate briefing but admonishing that failure to
comply with briefing requirements “usually results in the waiver of an issue”); see also
Cisneros v. State, No. 08-09-00096-CR, 2010 WL 2990657, at *4 (Tex. App.—El Paso
July 30, 2010, pet. ref’d) (not designated for publication) (noting that it is within an
appellate court’s discretion to conclude that an issue is waived due to inadequate
briefing (citing Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.
1994))).
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jury—as the sole judge of P.B.’s credibility—was free to believe her testimony, her
supposed motive to lie has no bearing on our legal-sufficiency analysis. See Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Pisaturo v. State, Nos.
01-06-00038-CR, 01-06-00074-CR, 2006 WL 3804456, at *2 (Tex. App.—Houston
[1st Dist.] Dec. 28, 2006, pet. ref’d) (mem. op., not designated for publication); Horner
v. State, No. 05-96-00526-CR, 1998 WL 19943, at *2 (Tex. App.—Dallas Jan. 22, 1998,
pet. ref’d) (not designated for publication); see also Tex. Code Crim. Proc. Ann. art.
38.04 (providing that “[t]he jury, in all cases, is the exclusive judge of the facts proved,
and of the weight to be given to the testimony” except where otherwise provided by
law).
Second, because a child complainant’s uncorroborated testimony, standing
alone, is sufficient to support a conviction for continuous sexual abuse of a child or
sexual assault of a child, neither outcry testimony nor corroborating physical evidence
is required to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07;
Brockman v. State, No. 02-18-00327-CR, 2019 WL 4048872, at *1 (Tex. App.—Fort
Worth Aug. 28, 2019, pet. ref’d) (mem. op., not designated for publication). Thus,
even if we were to accept as true Norris’s contentions that P.B.’s mother did not
qualify as an outcry witness and that P.B.’s accusations were uncorroborated by any
physical evidence, this would not render the evidence legally insufficient.
Finally, child complainants are not required to be specific about the dates and
times that sexual abuse occurred. Turner v. State, Nos. 05-21-00922-CR, 05-21-00924-
14
CR, 2023 WL 3991662, at *3 (Tex. App.—Dallas June 14, 2023, pet. ref’d) (mem. op.,
not designated for publication) (citing Montero v. State, No. 05-18-01281-CR, 2019 WL
3229170, at *2 (Tex. App.—Dallas July 18, 2019, no pet.) (mem. op., not designated
for publication)). As detailed above, P.B. testified that she was born in 2005 and that
Norris had begun sexually assaulting her by touching her vagina when she was eight
years old, had graduated to penile penetration of her vagina when she was around
twelve years old, and had continued to abuse her until she was approximately fifteen
years old.
Based on this testimony, a rational factfinder could have concluded that Norris
sexually assaulted P.B., see Tex. Penal Code Ann. § 22.011(a)(2), and that, during a
different period of time, he committed two or more acts of sexual abuse against her,
with one such act of sexual abuse occurring on at least the twenty-ninth day after the
day of another act of sexual abuse, see Lawson, 2018 WL 1192478, at *4; see also Tex.
Penal Code Ann. § 21.02(d) (“The jury must agree unanimously that the defendant,
during a period that is 30 or more days in duration, committed two or more acts of
sexual abuse.”). Thus, the evidence—when viewed in the light most favorable to the
verdict—is sufficient to support Norris’s convictions. See Tex. Code Crim. Proc.
Ann. art. 38.07; Tex. Penal Code Ann. §§ 21.02(b); 22.011(a)(2); see also Lawson, 2018
WL 1192478, at *5 (relying on testimony associating the abuse with school years,
seasons, and holidays to hold the evidence sufficient to support continuous-sexual-
abuse conviction despite lack of specific dates); Michell v. State, 381 S.W.3d 554, 561–
15
64 (Tex. App.—Eastland 2012, no pet.) (upholding continuous-sexual-abuse
conviction based on proof tying the abuse to different school years, holidays, seasons,
and homes that the child complainant lived in over time).
We overrule Norris’s fourth issue.
III. CONCLUSION
Having overruled all of Norris’s issues, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 18, 2024
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