Summary
holding that jury instruction that did not misdefine State's burden of proof did not amount to structural error under Sullivan
Summary of this case from Baker v. StateOpinion
No. 04-16-00220-CR
05-10-2017
Russell Lee BURKE, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 33rd District Court, Llano County, Texas
Trial Court No. CR6998
Honorable Jerry Allan Garrett, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
The Texas Supreme Court transferred this appeal to this court for docket equalization purposes. See TEX. GOV'T CODE § 73.001.
Russell Lee Burke was convicted by a jury of four counts of indecency with a child. On appeal, Burke contends: (1) article 38.37, section 2(b) of the Texas Code of Criminal Procedure is facially unconstitutional; (2) the inclusion of an instruction in the jury charge regarding evidence admissible under article 38.37, section 2(b) resulted in structural error; (3) the jury charge failed to instruct the jury that its verdict was required to be unanimous as to each separate offense; (4) article 38.37, section 2(b) violates the ex post facto provision of the United States Constitution; and (4) the evidence is legally insufficient to support the convictions. We affirm the trial court's judgment.
BACKGROUND
Burke was charged with four counts of indecency with a child by touching the genitals of the victim, who was identified as Juvenile #1, on four separate dates in 2012 and 2013. Juvenile #1 testified at trial and described the incidents which occurred when she was around eight years old.
Evidence was also admitted to establish Burke was convicted in Colorado in 1994 of two counts of sexual assault of a child and was a registered sex offender. The victim of the Colorado offenses testified she was nine years old when the offenses occurred.
A third victim also testified to multiple incidents of sexual abuse by Burke that occurred from 1985 to 1988, when Burke was married to the victim's aunt. The victim testified the abuse started when she was seven and ended after she moved from Colorado to Texas when she was eleven. Burke was never charged or convicted with any offenses in relation to the third victim.
After hearing the evidence, the jury found Burke guilty of all four counts. Burke appeals.
CONSTITUTIONALITY OF ARTICLE 38.37, SECTION 2(b)
In his first issue, Burke contends article 38.37, section 2(b) of the Texas Code of Criminal Procedure is facially unconstitutional because it violates his due process rights. Although this court has yet to address this issue, the Austin court, from which this appeal was transferred, has addressed the issue and held article 38.37 is not facially unconstitutional. Robisheaux v. State, 483 S.W.3d 205, 209-13 (Tex. App.—Austin 2016, pet. ref'd); see also TEX. R. APP. P. 41.3 ("court of appeals to which [a] case is transferred must decide the case in accordance with the precedent of the transferor court").
Article 38.37, section 2(b) provides:
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 character of the defendant and acts performed in conformity with the character of the defendant.TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (West Supp. 2016). Indecency with a child and sexual assault of a child are among the offenses described in Subsection (a)(1). Id. at § 2(a)(1)(C)-(D).
In Robisheaux, the Austin court heavily relied on two opinions from sister courts of appeals which held article 38.37, section 2(b) did not violate a defendant's due process rights and was constitutional. 483 S.W.3d at 210-13 (citing Belcher v. State, 474 S.W.3d 840, 843-47 (Tex. App.—Tyler 2015, no pet.) and Harris v. State, 475 S.W.3d 395, 398-403 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd)). The Austin court noted the Belcher and Harris opinions analogized article 38.37 to Federal Rules of Evidence 413 and 414 which federal courts have determined do not present due-process concerns because of the protections provided by Federal Rule of Evidence 403, which is the counterpart to Texas Rule of Evidence 403. 483 S.W.3d at 211-13. The Austin court also noted the Belcher opinion reasoned that the policy concerns justifying the "'federal decision to admit propensity evidence in child molestation cases are equally applicable to state prosecutions.'" Id. at 212 (quoting Belcher, 474 S.W.3d at 847). The Austin court further noted the Belcher and Harris opinions referred to the various procedural safeguards contained in article 38.37, including the right to notice and the right to a hearing outside the presence of the jury to determine admissibility. Id. at 212-13; see also TEX. CODE CRIM. PROC. ANN. art. 38.37, §§ 2-a, 3. Finally, the Austin court noted the Harris opinion reasoned article 38.37, section 2(b) "'does not alter the State's burden of proof because the State is still required to prove every element of the charged offense beyond a reasonable doubt.'" Id. at 213 (quoting Harris, 475 S.W.3d at 402); see also Buxton v. State, No. 01-15-00857-CR, 2017 WL 219158, at *14 (Tex. App.—Houston [1st Dist.] Jan. 19, 2017, no pet.) (holding article 38.37, section 2(b) does not violate a defendant's due process rights); Bezerra v. State, 485 S.W.3d 133, 139-40 (Tex. App.—Amarillo 2016, pet. ref'd) (same). We conclude article 38.37, section 2(b) does not violate a defendant's due process rights. Burke's first issue is overruled.
Article 38.37, section 2-a provides:
Before evidence described by Section 2 may be introduced, the trial judge must:TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a. Article 38.37, section 3 provides:
(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.
The state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 1 or 2 not later than the 30th day before the date of the defendant's trial.Id. at § 3.
JURY UNANIMITY
In his second and third issues, Burke contends the jury charge: (1) caused Sullivan-type structural error because the article 38.37, section 2(b) instruction allowed him "to be convicted of offense[s] which were not part of the indictment and to substitute as evidence of the indicted conduct;" and (2) failed to give a unanimity instruction as to each separate count or offense in the indictment.
With regard to Burke's first contention, this court has previously rejected the same argument in Baez v. State, 486 S.W.3d 592, 599 (Tex. App.—San Antonio 2015, pet. ref'd). In Baez, we first noted the United States Supreme Court held in Sullivan v. Louisiana, 508 U.S. 275, 282-82 (1993), "that a jury charge that misdefine[s] the State's burden of proof as being less than beyond a reasonable doubt constitutes structural error and is never harmless error." Baez, 486 S.W.3d at 598. We then noted the challenged instruction which was based on article 38.37, section 2(b) "did nothing more than inform the jury that it could consider [testimony of the other alleged acts] for any bearing it had on relevant matters, including 'the character of the defendant and such act, if any, performed in conformity with the character of the defendant, the state of mind of the defendant and each complainant, and the previous and subsequent relationship between the defendant and each complainant.'" Id. at 599. Therefore, we held such an instruction "did not mis-direct the jury as to the State's burden of proof and did not amount to 'structural' error for which no harm analysis is necessary." Id.
The instruction in the instant case, which is similar to the instruction analyzed in Baez, provided:
Evidence of Wrongful Acts Possibly Committed by Defendant(emphasis added). This instruction similarly does nothing more than inform the jury it could consider the testimony regarding the wrongful acts against the two other children only for any bearing it had on relevant matters. See Baez, 486 S.W.3d at 599. In addition, unlike the instruction in Baez, the instruction in the instant case emphasized the jury could not find Burke guilty based solely on the previous acts. Therefore, we hold the instruction did not misdefine the State's burden and did not amount to structural error under Sullivan. See id. Burke's second issue is overruled.
During the trial, you heard evidence that the defendant may have committed wrongful acts against two other children not charged in the indictment. With regard to these other acts, if any, you are instructed that said evidence was admitted for any bearing it has on relevant matters, including the character of the defendant and such act, if any, performed in conformity with the character of the defendant. Those of you who believe the defendant did the wrongful act, if any, may consider it. You are not to consider that evidence at all unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit the wrongful act or acts. If you find beyond a reasonable doubt the defendant committed these previous acts , you may not find the defendant guilty in this cause based solely on the previous acts.
In his third issue, Burke contends the jury charge failed to give a unanimity instruction as to each separate count or offense in the indictment. We disagree.
"Under state law, the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases." Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). In the instant case, each of the application paragraphs of the jury charge specifically instructed the jury Burke could be found guilty of the indecency with a child offense charged in the count described in that paragraph only if the jury believed from evidence beyond a reasonable doubt that he engaged in sexual contact with Juvenile #1 by touching the genitals of Juvenile #1 on or about the date set forth in the application paragraph. Furthermore, the jury was instructed it could return a verdict only if all twelve jurors agreed on the verdict. Accordingly, the jury charge instructed the jury a unanimous verdict was required as to each separate offense. Burke's third issue is overruled.
The application paragraph for Count I read as follows:
Now with respect to the offense of INDECENCY WITH A CHILD BY SEXUAL CONTACT as charged in Count I of the indictment, and bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant, RUSSELL LEE BURKE, on or about the 21st day of December, 2012, in the County of Llano and State of Texas, as charged in the indictment, did then and there with the intent to arouse or gratify the sexual desire of the said RUSSELL LEE BURKE, engage in sexual contact with Juvenile #1, a child younger than 17 years of age, by touching the genitals of the said Juvenile #1, you will find the Defendant guilty of the offense of INDECENCY WITH A CHILD BY SEXUAL CONTACT as charged in Count I of the indictment and so say by your verdict, but it you do not believe or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of INDECENCY WITH A CHILD BY SEXUAL CONTACT as charged in Count I of the indictment and say by your verdict "not guilty." In any event, you will then proceed to determine whether the Defendant is guilty of the offense of INDECENCY WITH A CHILD BY SEXUAL CONTACT as charged in Count II of the indictment.The application paragraphs for Counts II, III, and IV were similarly worded with the exception of a change in the date of the charged offense and a change in the last sentence to reference the next count. The last sentence was, however, omitted in the application paragraph for Count IV since there was not another count for the jury to proceed to consider after Count IV.
EX POST FACTO LAW
In his fourth issue, Burke asserts his conviction was obtained in violation of the ex post facto provision of the United States Constitution. The argument section of Burke's brief with regard to this issue consists of the following two sentences:
Appellant's conviction was obtained in violation of the Ex Post Facto provision of the United States Constitution, as follows: TEX. CODE CRIM. PROC. ART. 38.37, as amended, altered the legal rules of evidence, and now receives less,
or different, testimony, than the law required at the time of the commission of the offense, in order to convict on the indecency statute, because it now allows evidence of extraneous offenses that was previously only admissible for a limited purpose, as substantive evidence of guilt that can now, on its own support a finding of guilt. Additionally, TEX. CODE CRIM. PROC. ART. 38.37 does not forbid the use of extraneous acts that occurred before the effective date of TEX. CODE CRIM. PROC. ART. 38.27 criminal statute but allows their consideration as substantive evidence, without limitations, to establish guilt., [sic] and which was innocent when done, criminal, and punishes such action.Both this court and the Austin court have rejected the argument that article 38.37, section 2(b) violates the ex post facto provision of the United States Constitution. See Robisheaux, 483 S.W.3d at 213-15; Baez, 486 S.W.3d at 599-600. As this court held in Baez,
For the reasons stated above, we do not believe section 2(b) makes an action done before September 1, 2013, and which was innocent when done, criminal or punishable because section 2(b) does not allow extraneous offense evidence to be offered as substantive evidence of guilt. The State must still satisfy its burden of proof as to each element of the offense. Similarly, we do not agree that section 2(b) alters the legal rules of evidence to allow less or different testimony than the law required at the time of the commission of the offence in order to convict the defendant.486 S.W.3d at 600. For the reasons stated in Robisheaux and Baez, we similarly reject the argument made in Burke's brief.
Burke's fourth issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his final issue, Burke challenges the sufficiency of the evidence to support his convictions. Instead of challenging the sufficiency of the evidence under the traditional standard of review, however, Burke states his sufficiency challenge "is in effect a hybrid of the above raised points of error" because "[d]ue to the muddled reasoning of [article 38.37] it is impossible to determine if the jury found each element of each count of the indictment true beyond a reasonable doubt." Burke then refers to evidence the jury could have considered in assessing the credibility of the witnesses and argues the article 38.37, section 2(b) instruction allowed the jury to convict him based on the evidence of the wrongful acts against the other two children.
When conducting a legal sufficiency review, we consider all of the evidence in the light most favorable to the verdict to determine whether, based on the evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). "The trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record." Ramsey, 473 S.W.3d at 809.
In this case, the victim of the offenses testified Burke lifted her underwear with one hand and rubbed her vagina with his other hand on multiple occasions. The testimony of a child victim is sufficient evidence to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Although defense counsel attempted to discredit the victim's testimony based on her delayed outcry and by suggesting the allegations were made after Burke refused the victim's father's request for a loan, the jury is the exclusive judge of the victim's credibility. Because the victim's testimony is sufficient evidence to support Burke's convictions, his final issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH