Richard Columbus Stricklin II v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-235-CR
RICHARD COLUMBUS STRICKLIN II APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Richard Columbus Stricklin II appeals his two convictions for
indecency with a child by contact. In two points, appellant argues that the
evidence is factually insufficient to support his convictions and that the trial
court abused its discretion by overruling his objection to the State’s improper
1
… See T EX. R. A PP. P. 47.4.
notice of extraneous offense testimony during the punishment phase. We affirm.
II. Background Facts
In February 2004, Jessica 2 told her mother, Deborah, that her father,
appellant, had sexually abused her. Jessica was ten or eleven years old when
appellant began abusing her and seventeen years old at the time of trial. At the
time of the outcry, Deborah and appellant were divorced. Deborah was living
in Arlington, Texas, and appellant was living with his parents in Mountain View,
Missouri. Deborah and appellant have two other daughters, Abigail and Teresa,
ages sixteen and fourteen, respectively at the time of trial.
Jessica stated that the abuse occurred when appellant was living in an
apartment in Arlington, Texas. Jessica testified that appellant initially touched
her breasts with his hands and mouth. She further stated that appellant would
touch her inner thigh and [genitalia] with his hands, put his mouth on her
[genitalia], and lie on top of her while she was asleep. Jessica also
remembered single incidents of appellant kissing her on her mouth and
attempting to put his penis in her [genitalia].
2
… Cf. T EX. R. A PP. P. 9.8, 71 T EX. B.J. 287-88 (Tex. 2008, scheduled to
take effect Sept. 1, 2008) (authorizing appellate courts to redact the names of
minor children and parents in appellate proceedings following parental-rights
termination proceedings or juvenile court proceedings and replace them with
fictitious names). Therefore, the names of minors and parents have been
redacted and replaced with fictitious names.
2
After Jessica told her about the abuse, Deborah called Child Protective
Services (“CPS”). She then took Jessica to Alliance for Children in Arlington,
Texas, to speak with a CPS investigator regarding the abuse and also took
Jessica to Cook Children’s Medical Center for a sexual abuse exam.
Abigail moved to Missouri to live with appellant’s parents before Jessica
made the outcry, and Teresa moved to Missouri when she was twelve years
old. While Abigail and Jessica were living in Missouri, appellant lived at his
parents’ house in Missouri when he was not on active duty with the Navy
Reserves or driving a truck. Deborah and Jessica would travel to Missouri for
the holidays to visit Abigail and Teresa. During these visits, Jessica was never
allowed to have contact with appellant.
The jury found appellant guilty of two counts of indecency with a child
by contact and assessed his punishment at thirteen years’ in the Institutional
Division of the Texas Department of Criminal Justice for each count, to run
concurrently.3
3
… The jury acquitted appellant of three counts of aggravated sexual
assault of a child. Additionally, the State did not proceed to trial on an
additional indecency with a child offense.
3
III. Factual Sufficiency
In his first point, appellant asserts that the evidence is factually
insufficient to support his convictions for indecency with a child by contact.
A. Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
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overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
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B. Analysis
At trial, Jessica testified that she was ten or eleven years old when
appellant began to sexually abuse her. Jessica stated that at night she would
go to bed in the bedroom that she shared with her sisters Abigail and Teresa at
appellant’s apartment and that she would wake up in appellant’s bed. She said
that when she woke up, her shirt would be on the floor. Jessica testified that
she never talked to appellant about the abuse but instead tried to ignore it.
Jessica stated that appellant touched her breasts with his hands and mouth,
kissed her on the mouth one time, touched her inner thigh and [genitalia] with
his hands, and put his mouth on her [genitalia]. She also stated that she would
wake up with appellant lying on top of her, and one time appellant attempted
to put his penis in her [genitalia]. She stated that she would not get up during
the abuse but instead would pretend like she was sleeping.
Jessica testified that she told Abigail about the abuse. After telling
Abigail what had occurred, Abigail then confronted appellant. Jessica stated
that she stood in the hallway when Abigail was talking with appellant because
she was afraid. After the confrontation, the abuse stopped for a couple of
months, and then Jessica stopped spending the night at appellant’s apartment.
6
Deborah, Jessica’s mother, testified that in February 2004, she was
talking with Jessica in the laundry room when Jessica began to cry. Deborah
stated that after Jessica would not calm down, she asked Jessica if somebody
had touched her inappropriately, and Jessica shook her head “yes.” After
listing off several names of family members and friends, Deborah asked Jessica
if appellant had touched her, and Jessica shook her head and “busted out
crying.” Deborah then asked Jessica if the abuse happened on more than one
occasion, and Jessica shook her head “yes.” Jessica never gave Deborah any
specifics about the sexual abuse. Deborah estimated that the conversation
lasted thirty minutes.
After Jessica told Deborah about the sexual abuse, Deborah sent
appellant an email stating that she knew he had sexually abused Jessica and
that he was not going to see Jessica, Abigail, or Teresa anymore. Appellant
wrote Deborah back in an email the next day. The email stated in pertinent
part:
Back when jered [sic] stayed with me & the girl’s [sic], the girls
would take turns sleeping in bed with me. Lisa[, my estranged
wife,] and [I] had separated and I was having erotic dream’s [sic]
about Lisa. [Abigail] approached me about a week later and ask[ed]
if we could talk in my room. She said that her and [Jessica] had
talked about it and that they didn’t think it was right what was
happening. I was stunned[.] I told her & [Jessica] that I apologized
for any thing that had happened and swore it would never happen
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again. From that day forward the girl’s [sic] never slept in bed with
me again by my choice.
Deborah then called CPS and took Jessica to Alliance for Children in
Arlington, Texas, to be interviewed by CPS. She also took Jessica to Cook
Children’s Medical Center for a sexual abuse exam. Deborah further testified
that after Jessica told her about the abuse, she allowed supervised visits
between appellant, Jessica, Teresa, and Abigail at her house approximately
three to four times. She stated that appellant contacted the girls after the
allegations were made.
Jessica testified that after making the outcry to Deborah, she called her
cousin Meredith and told her about the abuse. However, Meredith told Jessica
that she was uncomfortable talking about the abuse, so Jessica stopped talking
about it.
Jessica stated that she went to Missouri for the holidays after she made
the outcry to visit her sisters and grandparents. Jessica testified that she
wanted to see appellant during the visits. Additionally, Jessica stated that she
considered moving to Missouri to live with her grandparents after she made the
allegations but that she is no longer going to move.
Jamye Coffman, medical director of the CARE team at Cook Children’s
Medical Center, testified that on March 9, 2004, she spoke with Jessica, then
8
thirteen years old, about the sexual abuse. She stated that Jessica was initially
reluctant to talk about the abuse. Jessica told Coffman that the abuse began
when she was eleven years old. She said that she woke up one morning
without any clothes on.
Jessica told Dr. Coffman that when she was eleven or twelve years old,
appellant would touch her on her breasts and privates with her panties off with
his hand, put his tongue in her privates, made her masturbate him, ejaculated
on her privates one time, and French kissed her. Dr. Coffman testified that
Jessica told her that she and Abigail confronted appellant about the abuse, and
appellant told them that it would stop. Dr. Coffman stated that her diagnosis
was sexual abuse with nonspecific findings.
Edna Campbell, a CPS investigator, testified that she received a referral
on February 10, 2004, regarding the sexual abuse of Jessica. Campbell stated
that she interviewed Jessica on February 13, 2004, for approximately an hour.
During the interview, Jessica stated that appellant had touched her
inappropriately when she was visiting him. Jessica said that on several
occasions she had awakened without her underwear on or without any clothes
on.
In particular, Jessica recalled two specific instances of abuse, during
Christmastime and late summer 2003. Jessica told Campbell that she would
9
wake up naked. Jessica told Campbell that during Christmas one year, she was
at her grandparents’ house and woke up with appellant in her bed, even though
she remembered appellant’s going to sleep on the couch the night before.
Additionally, Jessica stated that in the summer of 2003, she woke up in
appellant’s bed, rolled over, and ran back into the bedroom that she shared with
her sisters. Further, in her written statement, Jessica stated that she woke up
with a “yellow pile of liquid on her vagina.”
During the interview, Jessica stated that she was not sure whether the
abuse had actually occurred or whether she was just dreaming. However,
Jessica stated that she did not think it was a dream. Campbell testified that
Jessica never stated that appellant laid on top of her or French kissed her nor
that she performed masturbation on appellant. However, Campbell further
stated that she felt like Jessica was not telling her the complete story.
Campbell further testified that on February 26, 2004, she spoke with
appellant at the advocacy center about the abuse. When Campbell asked
appellant if the abuse had occurred, he neither confirmed nor denied it but
simply stated that he could not remember if it had occurred because he was a
deep sleeper.
Additionally, appellant said that he had a king-size bed and that Jessica
and Abigail would take turns sleeping in his bed at night because he had a
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roommate at the time. He stated that at the end of the summer in 2001, the
girls told him about the sexual abuse.
Abigail testified that she always shared a room with Jessica and Teresa
when they were at appellant’s apartment. She stated that she and Jessica
would share a bed and that Jessica would normally sleep on the side of the bed
next to the wall. Abigail testified that appellant never got Jessica out of their
bed and took her to his bedroom because he would have had to reach across
her to get Jessica. Abigail further stated that she would have awakened if
appellant had attempted to get Jessica out of their bed because she is a light
sleeper.
She stated that Jessica told her that appellant had abused her but that
Jessica did not go into details about the allegations. Abigail then went to
appellant and confronted him about the abuse. Abigail testified that when she
told appellant that Jessica stated that he had abused her, he was “puzzled” and
did not know what she was talking about. Further, Abigail said that appellant
never personally abused her.
Abigail stated that after Jessica made the outcry, Deborah and Jessica
went to Missouri for Thanksgiving, Christmas, and spring break. She stated
that they were not allowed to stay at her grandparents’ house because
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appellant was living there. Abigail testified that Jessica was upset and
confused that she could not stay at the house.
Teresa, appellant’s youngest daughter and Jessica’s sister, stated that
she and her sisters had their own room when they slept at appellant’s
apartment. Teresa testified that they slept on a bunk bed at appellant’s
apartment, that she always slept on the top bunk bed, and that Jessica and
Abigail would sleep on the bottom bunk. According to Teresa, Jessica would
always sleep on the side of the bed that was against the wall because Jessica
was afraid she would fall off the bed. Teresa stated that Jessica and Abigail
never acted like they were afraid of appellant.
Additionally, Teresa said that after Jessica made the allegations of sexual
abuse, appellant drove Teresa back to Texas from Missouri, and Deborah, her
mother, did not express any concerns about her being in the car alone with
appellant. Teresa testified that appellant always slept on the couch at her
grandparents’ house in Missouri and that Jessica was always in a bedroom with
either herself or Teresa.
Carolyn Kay (“Carolyn”), appellant’s mother, testified that appellant lived
on the farm in Missouri with her and her husband. She stated that Abigail
moved to the farm before Jessica made the allegations, and Teresa moved after
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the allegations were made. Carolyn testified that Deborah was never concerned
that Abigail and Teresa were living in the same house as appellant.
She stated that Deborah and Jessica went up to Missouri the first
Thanksgiving after Jessica made the outcry. Carolyn testified that Deborah and
Jessica wanted to stay at her house during their visit but that she told them
that they could not stay there because appellant was living there. Additionally,
Jessica was “extremely upset” that she could not see appellant. Carolyn stated
that Deborah and Jessica went to Missouri for Christmas in 2004 and for
Abigail’s birthday in May 2005.
Carolyn stated that Jessica has a lot of problems and that she is a “drama
queen.” Carolyn testified that Jessica would lie to get attention and that she
gets irritated when her sisters get more attention than she does.
Furthermore, Carolyn testified that it was not possible for Jessica to wake
up with appellant in her bed at her house because she would have awakened
when appellant walked up the stairs. She stated that whenever Jessica was
at her house, the girls would sleep upstairs, and appellant would sleep on the
couch downstairs. Carolyn further testified that Abigail is a light sleeper.
Meredith, appellant’s niece and Jessica’s cousin, testified that when she
and Jessica would stay at their grandparents’ house, they would always sleep
in the same bed. She said that Abigail and Teresa would sleep on the floor in
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the same room with them. Meredith stated that Jessica never had a room to
herself at their grandparents’ house.
Further, Meredith stated that Jessica called her one night several months
after making the sexual abuse allegations and told her that she had had a dream
in which a guy with no face was chasing her and she could not get away from
him. Jessica then stated that she began remembering how things “had
happened to her at night when she was sleeping.” Meredith then asked Jessica
if she knew what sexual intercourse was, and Jessica stated, “yeah and no.”
Jessica stated that she was not sure if appellant had really abused her or if she
had dreamed that she had been abused. Additionally, Meredith testified that
Jessica is not very truthful.
Appellant contends that the evidence is factually insufficient to show that
he committed the offenses of indecency with a child. Appellant asserts that
the record shows that Jessica dreamed up the allegations against him and that
she “is a liar.” 4 However, appellant acknowledged in an email to Deborah that
Jessica and Abigail had confronted him about the abuse. He also admitted
having an erotic dream during the time the girls were taking turns sleeping in
4
… The testimony of a child victim alone is sufficient to support a
conviction for indecency with a child. Johnston v. State, 230 S.W.3d 450,
455 (Tex. App.—Fort Worth, 2007 no pet.).
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the bed with him. Additionally, when appellant spoke with Campbell about
Jessica’s outcry, he told her that he could not remember if he had sexually
abused Jessica but that Jessica and Abigail had confronted him about the
abuse at the end of the summer in 2001.
Deferring, as we must, to the jury’s resolution of contradictory testimony
and evaluation of credibility and demeanor, we cannot say that the evidence is
so weak that the verdict is clearly wrong and manifestly unjust nor that the
conflicting evidence so greatly outweighs the evidence supporting the verdict
that the jury’s determination is manifestly unjust. See Johnson, 23 S.W.3d at
8. Accordingly, we overrule appellant’s first point.
IV. Notice of Intent to Introduce Extraneous Offense Evidence
In appellant’s second point, he contends that the trial court erred by
overruling his objection to extraneous offense testimony because the state did
not give him timely notice of its intent to introduce it. The State, however,
argues that the trial court did not abuse its discretion because appellant was
given sufficient notice about the extraneous offense.5
5
… In its brief, the State argues that appellant did not properly preserve
error because he did not repeatedly object to the extraneous offense testimony.
However, appellant objected four times before asking for a running objection
from the trial court. Additionally, when appellant asked for a running objection,
the trial court stated, “Ma’am, you have your objection. I’ve given it to you.”
Thus, the record demonstrates that appellant properly preserved error to this
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A. Standard of Review
The trial court’s decision to admit extraneous offense evidence during
punishment is reviewed for an abuse of discretion. Sanders v. State, 191
S.W.3d 272, 276 (Tex. App.—Waco 2006, pet. ref’d), cert. denied, 127 S. Ct.
1141 (2007); see also Lajoie v. State, 237 S.W.3d 345, 352 (Tex. App.—Fort
Worth 2007, no pet.). The trial court’s decision should be reversed on appeal
only if there is a showing of a clear abuse of discetion. Theus v. State, 845
S.W.2d 874, 881 (Tex. Crim. App. 1992). Only if the court’s decision falls
outside the “zone of reasonable disagreement” has it abused its discretion.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g).
B. Applicable Law
Article 37.07, section 3(g) of the Texas Code of Criminal Procedure
provides as follows:
On timely request of the defendant, notice of intent to introduce
evidence under this article shall be given in the same manner
required by Rule 404(b), Texas Rules of Evidence. If the attorney
representing the state intends to introduce an extraneous crime or
bad act that has not resulted in a final conviction in a court of
record or a probated or suspended sentence, notice of that intent
is reasonable only if the notice includes the date on which and the
issue because the trial court clearly understood the extent and nature of
appellant’s objection and ruled on it. See T EX. R. A PP. P. 33.1(a).
16
county in which the alleged crime or bad act occurred and the
name of the alleged victim of the crime or bad act. The requirement
under this subsection that the attorney representing the state give
notice applies only if the defendant makes a timely request to the
attorney representing the state for the notice.
T EX. C ODE C RIM. P ROC. A NN. art. 37.07, §3(g) (Vernon Supp. 2007).
C. Analysis
On July 22, 2004, appellant properly filed his request for notice of
extraneous offenses and offenses to be used for enhancements under article
37.07, § 3(g) of the code of criminal procedure and rule of evidence 404(b).
T EX. C ODE C RIM. P ROC. A NN. art. 37.07, § 3(g); T EX. R. E VID. 404(b). The State
filed its first notice of intent to offer extraneous offenses on April 28, 2006.
On June 22, 2006, the State filed its supplemental notice of intent to offer
extraneous offenses. Subsequently, on June 13, 2007, the State filed its
second supplemental notice of intent to introduce evidence of extraneous
offenses, other crimes, wrongs and acts under article 37.07, § 3(g). The
State’s second supplemental notice indicated that the State intended to offer
the testimony of Paula, appellant’s former stepdaughter, during the punishment
phase to show that appellant had sexually abused Paula. This notice was filed
nine days before the beginning of the guilt-innocence phase of trial and fourteen
days before the beginning of the punishment phase.
17
The State, on timely request by the defendant, must give reasonable
notice of extraneous crimes or bad acts that the State intends to introduce
during the punishment phase. T EX. C ODE C RIM. P ROC. A NN. art. 37.07, § 3(g);
Burling v. State, 83 S.W.3d 199, 202–03 (Tex. App.—Fort Worth 2002, pet.
ref’d). To be reasonable, the State’s notice must be given in advance of trial
and must include the date on which and the county in which the alleged
offense occurred and the complainant's name. T EX. C ODE C RIM. P ROC. A NN. art.
37.07, § 3(g). The purpose of the notice requirement is to prevent unfair
surprise to a defendant. Wallace v. State, 135 S.W.3d 114, 120 (Tex.
App.—Tyler 2004, no pet.); Burling, 83 S.W.3d at 203; Nance v. State, 946
S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d). Further, the
reasonableness of the notice turns on the facts and circumstances of each
case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet.
ref’d); see Fugate v. State, 200 S.W.3d 781, 783 (Tex. App.—Fort W orth
2006, no pet.).
On June 21, 2007, appellant filed a motion for continuance alleging that
he did not have adequate time to investigate Paula’s sexual abuse allegations.
In his motion, appellant acknowledged that the State did not learn of the
extraneous offense until June 13, 2007, when Paula told her therapist about
18
the abuse. Accordingly, appellant stated that the prosecutor informed him
about Paula’s testimony that same day.
Because the record shows that the prosecutor informed appellant of the
extraneous offense evidence as soon as the prosecutor discovered it, which
was nine days prior to trial and fourteen days before it was actually used at
punishment, we hold that the trial court did not abuse its discretion by
overruling appellant’s objection to the introduction of the evidence. See Scott,
57 S.W.3d at 483 (determining that six days’ notice before trial was sufficient
under facts of the case); Henderson v. State, 29 S.W.3d 616, 625 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d.) (holding that eight days’ notice of
extraneous offense was reasonable when the prosecutor discovered the
information eight days before the testimony in the punishment phase); see also
Fugate, 200 S.W.3d at 783 (holding that seven days’ prior notice of intent to
enhance punishment was adequate under facts of the case.) Accordingly, we
overrule appellant’s second point.
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V. Conclusion
Having overruled appellant’s two points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 19, 2008
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