Dantzler v. State

Full title: JOSE SIMON MORENO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 6, 2010

No. 05-09-00583-CR (Tex. App. Jul. 6, 2010)

Opinion

No. 05-09-00583-CR

Opinion issued July 6, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-40996-QW.

Before Justices BRIDGES, FITZGERALD, and FILLMORE.

OPINION

Opinion By Justice FITZGERALD.

A jury found appellant Jose Simon Moreno guilty of aggravated sexual assault of a child under fourteen years of age and assessed his punishment at sixty years' confinement and a $10,000 fine. In four issues, Moreno contends the evidence is factually insufficient to support the jury's verdict, the trial court erroneously limited his ability to voir dire prospective jurors, and he was prosecuted for the incorrect offense pursuant to the in pari materia doctrine. We affirm the trial court's judgment.

Sufficiency of the Evidence

In his first issue, Moreno argues the evidence is factually insufficient to support the jury's verdict: he contends the record establishes that he was falsely accused. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. We give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge. Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). When the complainant in this case was four years old, Moreno married her mother. The complainant testified that Moreno disciplined her by taking her into a bedroom, locking the door, removing her clothes, and beating her with a belt. When she was five, the complainant was watching television when Moreno took her into his bedroom, removed her clothes, and told her to watch a pornographic movie while he touched her and attempted to penetrate her vagina with his penis. The complainant testified that when he had forced his penis inside her "halfway" she started to bleed; she screamed and cried until he withdrew. She testified Moreno told her the incident was "our little secret," and that if she told anyone, her mother and brother "would pay the consequences." The complainant was still bleeding the next day. Moreno persuaded her mother she must have started menstruating, and her mother gave her a sanitary napkin to wear on a school field trip that day. The complainant testified she felt awkward and had difficulty walking and keeping up with her classmates because of the pain. Sometime after this incident, Moreno stopped beating the complainant. Instead, he would take her into a locked bedroom as he had before, but he would strike the bed with the belt and direct the complainant to scream as if she had been stricken. Then he would touch her vagina and anus with his hand. When the complainant was thirteen, Moreno fully penetrated the complainant in the back of his van. More than once he took her to a nearby motel to have sex. (She later pointed the motel out to police officers investigating her case.) He always wanted her to be at home, and he refused to allow her to see friends or attend events away from home. But the complainant acknowledged that over time she agreed to have sex with Moreno so he would buy her things she wanted. She testified that on different occasions, after he had sex with her, he bought her clothes, shoes, a cellphone, and a computer. She estimated that Moreno sexually assaulted her more than forty times. The complainant described one incident when her mother entered the bedroom and discovered Moreno touching the complainant's vagina. Moreno and his wife argued. But they quickly reconciled, and they continued living together. When she was fourteen, the complainant testified, she began regretting her actions. She "felt like trash, like [she] wasn't worth anything," and she began cutting herself. In October of 2007, the complainant was required to have a booster shot. When the nurse directed her to remove her jacket, she started screaming; she was afraid the nurse would see signs of her cutting. Eventually, she told the nurse about Moreno's abuse. The complainant's mother testified and confirmed that she had walked in on her husband and daughter in bed. She pulled the covers back and saw that Moreno had pulled her daughter's pants down and was touching her vagina. The mother told Moreno she wanted him to leave, but he threatened to take her children away. She believed him, so she did not pursue the matter. She conceded that she had initially told the police she did not believe the abuse had happened and that her daughter told lies. She also acknowledged that she had been charged with abandoning her daughter, and that the State had agreed to reduce that felony charge to a misdemeanor in exchange for her truthful testimony against her husband. Moreno testified on his own behalf. He described problems the complainant had experienced adjusting first to his marriage to her mother, and later to the births of her two brothers. He testified the complainant became angry with him when-on two different occasions-her cellphones were taken away because she ran up huge texting bills. Moreno denied attempting to keep the complainant at home, away from friends and activities as she had charged. And he denied his wife's testimony concerning finding him in bed, fondling the complainant. Moreno conceded he had had pornography in the house once and that his work van matched the description the complainant gave of the van in which he had assaulted her. He testified to the location of the motel the complainant had identified; it was on the way to a restaurant the family went to almost every week. He stated the complainant was lying and his wife was lying. Moreno contends that the great weight and preponderance of the evidence contradicts the jury's guilty verdict. He purports to identify eight examples of evidence that "reveals [he] was falsely accused." We conclude that whether Moreno is purporting to identify conflicts in testimony, ¹ or drawing conclusions about witnesses' behavior, ² or ascribing motives to lie, ³ he has really done nothing more than challenge the credibility of the witnesses who testified against him. Based on the verdict, we know the jury believed the complainant and did not believe Moreno. Jurors had the opportunity to see and hear the witnesses and to evaluate their credibility and demeanor; nothing in the record persuades us we should not defer to their decision in that regard. See Lancon, 253 S.W.3d at 706. We cannot conclude, with any objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. Accordingly, the evidence is factually sufficient, and we overrule Moreno's first issue.

Voir Dire Commitment Question

In his second and third issues, Moreno complains the trial court improperly limited his voir dire of the jury panel by disallowing a question concerning the prospective jurors' willingness to consider probation supervision in light of the age disparity between Moreno and the complainant. Moreno contends the question was proper because it would have subjected prospective jurors to a valid challenge for cause and because it was necessary for him to exercise his peremptory challenges in an intelligent manner. We review a trial court's decision to restrict voir dire for an abuse of discretion. Allridge v. State, 762 S.W.2d 146, 163 (Tex. Crim. App. 1988). A court abuses its discretion when it prohibits a proper question about a proper area of inquiry. Id. A proper question seeks to discover a juror's views on an issue applicable to the case. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). But an otherwise proper question becomes impermissible if it attempts to commit the juror to a particular verdict based on particular facts. Id. If jurors are required to follow the law in a particular regard, attorneys may ask prospective jurors if they can commit to doing so. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). "However, where the law does not require the commitment, a commitment question is invariably improper." Id. Before the attorneys asked any questions of the venire in this case, the trial judge gave a substantial voir dire on basic legal issues involved in the case. When he came to the range of punishment, the judge explained that jurors must be able to consider the entire range of punishment-in this case, from probation to life imprisonment-for the offense. The judge cited examples of conduct that would constitute aggravated sexual assault of a child for which a jury might consider probation (an 18-year-old boy digitally penetrates a thirteen-year-old girlfriend a single time) or a life sentence (an uncle ties his ten-year-old niece to a chair and repeatedly rapes her). The judge explained the question was not whether jurors could give Moreno probation or a life sentence, but whether in the proper case they could give that punishment for the offense. Moreno objected and asked the court to allow him to ask the prospective jurors whether they would consider probation for him, in this case.⁴ Moreno pointed out that in response to the judge's questioning, at least two of the jurors had made specific reference to Moreno's age when saying they could not consider probation. He argued it was unfair for him to be prohibited from questioning the jurors "if they would consider probation in this case, knowing his age and the victim's age at the time." The trial judge denied Moreno's request and ordered Moreno not to ask any questions that focused attention strictly on his client. Moreno argues his question was a proper commitment question; we disagree. At the outset, the trial court correctly limited questioning in this area to the charged offense rather than to particular facts involving the defendant and complainant in this case. "[P]arties may not ask whether venire members can consider probation under the particular facts of the case beyond the offense as charged in the indictment." Barajas, 93 S.W.3d at 38 n. 1 (citing Standefer, 59 S.W.3d at 181). Moreno contends if a potential juror could not consider probation for him in this case, then that juror could be stricken for cause. Again, we disagree. The court of criminal appeals has determined the age of a victim is a permissible consideration during the punishment phase. Id. at 40. "The jury need not decide or refrain from assessing the appellant's punishment on the basis of the age of the victim." Id. In other words, no commitment is required from jurors as to considering the age of the victim in assessing punishment. Accordingly, Moreno's attempt to commit jurors on that issue could not have led to a strike for cause and would have been improper. See id.; see also Standefer, 59 S.W.3d at 181. Moreno attempts to distinguish Barajas by arguing his proposed question concerned his own age, not the victim's. But a trial court properly limits that line of questioning as well. See Moore v. State, 999 S.W.2d 385, 407 (Tex. Crim. App. 1999) (question is improper when designed to bind prospective juror to considering mitigating punishment due to age of offender). Moreover, Moreno's consistent argument has regarded the disparity between his age and the victim's. Thus, Barajas clearly applies. We overrule Moreno's second issue. Finally, Moreno argues the trial court's restrictions on his questioning prevented him from exercising his peremptory challenges intelligently. If a question is not clearly improper on some other basis, it may be asked for purposes of intelligently exercising peremptory challenges. Barajas, 93 S.W.3d at 39 (citing Ratliff v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985)). We have already concluded Moreno's proposed question was an improper commitment question. Accordingly, it was not permissible for purposes of exercising peremptory challenges. See id. We overrule Moreno's third issue as well.

In Pari Materia Challenge

In his fourth issue, Moreno contends the State violated the in pari materia doctrine by prosecuting him for aggravated sexual assault of a child rather than for prohibited sexual conduct. Our Legislature has codified the in pari materia doctrine within its directives for construction of statutes:

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

Tex. Gov't Code Ann. § 311.026 (Vernon 2005). This rule does not apply, however, when statutes cover different situations that were not intended to be considered together. Lomax v. State, 233 S.W.3d 302, 312 (Tex. Crim. App. 2007). In this case, Moreno argues the offense of aggravated sexual assault of a child is a general provision, and the offense of prohibited sexual conduct-which was formerly titled "Incest"-is a special provision acting as an exception to that general one.⁵ Moreno's argument has already been addressed and rejected by the Court of Criminal Appeals in Nelson v. State, 612 S.W.2d 605 (Tex. Crim. App. 1981). In Nelson, the appellant had been convicted of the rape of his twelve-year-old daughter under the predecessor statute to the current offense of aggravated sexual assault of a child. He argued he should have been prosecuted for "the more specific provision" of incest. Id. at 607. The court found the two offenses were not addressed to the same subject matter and incest was not a more specific criminalization of conduct constituting rape of a child. Id. The court concluded:

Although appellant's conduct violated both statutes, this is not sufficient to show statutes condemn the same conduct in a manner that makes one a general case and the other a special case. When the relationship between the accused and the complainant [is] looked to, incest may appear to be the more specific, but when the age requirement is looked to, rape of a child would appear to be the more specific. The elements of the two offenses are such that each has its unique requirements for culpability, and in some instances, such as this case, the same conduct will violate both.

Id. The differing emphases of the two offenses are underscored by their placement in the penal code: aggravated sexual assault of a child is an offense against the person; prohibited sexual conduct is an offense against the family. Moreno's argument that the offenses are in pari materia is not well-taken. We overrule his fourth issue. We affirm the trial court's judgment.