Opinion
No. 05-16-00168-CR
04-14-2017
DAMOND DEAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1575244-J
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Damond Dean appeals the trial court's judgment convicting him of sexual assault of a child younger than seventeen years of age, enhanced by two prior convictions. The jury found Dean guilty. The trial court found the enhancements true and assessed Dean's punishment at forty years of imprisonment.
Dean raises two issues on appeal, arguing the trial court erred when it: (1) overruled his objection to State's Exhibit No. 3, which contained the notes of the complainant's licensed professional counselor intern at the Child Advocacy Center and associated information; and (2) overruled his objection to the State's amended special plea of enhancement paragraphs. We conclude that even if the trial court erred when it overruled Dean's objection to State's Exhibit No. 3, Dean was not harmed. Also, we conclude the trial court did not err when it overruled Dean's objection to the State's amended special plea of enhancement paragraphs. The trial court's judgment is affirmed.
I. PROCEDURAL CONTEXT
Dean was indicted for sexual assault of a child younger than seventeen years of age. See TEX. PENAL CODE ANN. § 22.011(a)(2), (c)(1) (West 2011). After Dean was indicted, the State filed a special plea of enhancement, alleging that Dean had a prior conviction. On the first day of trial, before voir dire, the State filed an amended special plea of enhancement, alleging an additional prior conviction. As a result, the State alleged two prior convictions for the purposes of enhancing Dean's punishment. After a trial, the jury found Dean guilty. During the punishment hearing, Dean pleaded true to the enhancements, and the trial court found the enhancements true and assessed Dean's punishment at forty years of imprisonment.
II. OBJECTION TO STATE'S EXHIBIT NO. 3
In issue one, Dean argues the trial court erred when it overruled his objection to State's Exhibit No. 3, which contained the notes of the complainant's licensed professional counselor intern at the Child Advocacy Center and associated information. He claims the exhibit contains improper opinion testimony, irrelevant evidence, inadmissible hearsay, and improper victim impact evidence. Dean contends that he was harmed by the admission of this evidence because it "served only to confuse the jury and encourage them to act on aroused passion and sympathy" and was a "successful attempt to bolster [the complainant's] trial testimony." The State responds that the exhibit was not hearsay because it was not admitted for the truth of the matter, but to show the complainant had serious trauma issues and underwent lengthy treatment for these issues. Also, the State argues any error was harmless because State's Exhibit No. 2, the report of the complainant's pediatric doctor of osteopathy, contained the same evidence and was admitted without objection.
A. Non-Constitutional Error
Pursuant to rule 44.2(b), "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). A substantial right is affected if the error had a substantial and injurious effect or influence in determining the jury's verdict. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If the error did not influence the jury or had but a slight effect, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). An appellate court should examine the record as a whole when conducting a harm analysis. See Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire, if material to the appellant's claim. See Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. See Motilla, 78 S.W.3d 355; Morales, 32 S.W.3d at 867. Also, an appellate court should consider overwhelming evidence of guilt, but it is only one factor in the harm analysis. See Motilla, 78 S.W.3d 357.
However, it is well established that the erroneous admission of evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. See Coble, 330 S.W.3d at 282; Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error in the admission of evidence was harmless in light of "very similar" evidence admitted without objection). In other words, error in the admission of evidence may be rendered harmless when substantially the same evidence is admitted elsewhere without objection. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Castillo v. State, 79 S.W.3d 817, 827 (Tex. App.—Dallas 2002, pet. ref'd).
B. Application of the Law to the Facts
Assuming, without deciding, the trial court erred when it denied Dean's objection to State's Exhibit No. 3, we must consider whether that alleged non-constitutional error harmed Dean. See Werner v. State, 412 S.W.3d 542, 547 (Tex. Crim. App. 2013) (neither defendant nor State bears burden of demonstrating harm); Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001) (neither the State nor appellant must demonstrate harm when an error has occurred; it is appellate court's duty to assess harm); Taylor v. State, 93 S.W.3d 487, 503 (Tex. App.—Texarkana 2002, pet. ref'd) (noting parties may suggest how such harm is shown or not shown). Dean complains that State's Exhibit No. 3 contains material "filled out" by the complainant or her grandmother, a copy of a 2006 court order, and shows that the complainant "successfully completed a course of therapy designed to treat a victim of sexual abuse." He maintains that this allowed the jury to infer that the complainant suffered the reported sexual abuse.
The record shows that State's Exhibit No. 3 consists of 128 pages of notes and associated information generated by the licensed professional counselor intern from the Child Advocacy Center who provided counseling to the complainant over a period of several months. The exhibit contained: (1) a completed consent to release confidential information form; (2) a form containing information about the therapist, and an explanation of confidentiality and the exceptions to it; (3) a copy of a final order in a suit affecting the parent-child relationship appointing the complainant's managing and possessory conservators; (4) a completed initial intake form; (5) a case log; (6) the counselor's progress notes from her sessions with the complainant; (7) a completed UCLA PTSD Reaction Index for DSM-IV (RI) interview form; (8) a completed relaxation practice log; (9) a report prepared by the counselor; and (10) a signed informed consent for counseling services form. One of the progress reports contains a trauma history checklist and shows the following question and answer: "Has anyone forced you to have intercourse? Damond Dean - June 2013 [Handwritten Answer]." Also, the counselor's report states, in part, "[The complainant] identified details related to vaginal penetration and oral sex. She [illegible] two accounts, within the same day, of oral sex where she expressed feeling upset, unclean, scared, and crying. . . . However, [the complainant] successfully processed trauma [illegible] related to sexual abuse through desensitization."
The record also shows that State's Exhibit No. 2, the report of the complainant's pediatric doctor of osteopathy, was admitted without objection. State's Exhibit No. 2 contains, in part, the following statements:
(1) "In June 2013, [the complainant] was molested by mother's husband.";In his reply brief on appeal, Dean claims that "State's Exhibit [No.] 3 contains more and different information than [State's] [E]xhibit [No.] 2," but he does not identify the specific portions of the exhibit he refers to or provide references to where that may be found in that exhibit.
(2) "She no longer has contact with mother's husband. No more molestation since June.";
(3) "I will make CPS case report online. She needs to avoid any contact with the offender. Damond Dean [date of birth and address omitted]. Dallas County[.] 6/2013: full penetration, forced sexual intercourse, no condom use. . . . He requested that they keep this between them[.]"
(4) "He denied it until her mom kept asking then started crying and apologized."
(5) "Cps [sic] took care of report with sexual assault with stepfather."
Even if the trial court erred when it denied Dean's objection to State's Exhibit No. 3, we conclude that Dean was not harmed because substantially similar evidence was admitted without objection in State's Exhibit No. 2. See Coble, 330 S.W.3d at 282; Mayes, 816 S.W.2d at 88; Leday, 983 S.W.2d at 718. Issue one is decided against Dean.
III. ENHANCEMENT PARAGRAPHS
In issue two, Dean argues the trial court erred when it overruled his objection to the State's amended special plea of enhancement paragraphs. He claims that the State's filing of the amended special plea on the day of trial, but before voir dire, violated his right to due process because he was deprived of (1) sufficient notice of the penalty the State sought to impose and (2) a fair opportunity to evaluate his options, including the merits of accepting a plea agreement. Also, he maintains that the State's amended special plea was deficient because it does not specify the date of commission for the 2003 conviction. The State responds that its amended special plea was timely filed and the trial court explained the range of punishment that applied when there are two prior convictions. Also, the State argues that defense counsel admitted he knew about the existence of Dean's two prior felony convictions.
A. Applicable Law
The State is required to provide notice of its intent to use a defendant's prior conviction for enhancement purposes. See Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997). The notice of enhancement requirement is of constitutional origin. See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (citing Oyler v. Boles, 368 U.S. 448 (1962) and Brooks, 957 S.W.2d 30).
It is well settled that due process does not require pretrial notice that the trial on the substantive offense will be followed by an habitual offender punishment proceeding. See Oyler, 368 U.S. at 452; Pelache v. State, 324 S.W.3d 568, 576 (Tex. Crim. App. 2010); Villescas, 189 S.W.3d at 294. For purposes of conducting a due-process analysis, the determination of whether proper notice of enhancements was given does not require that notice be given within a particular period of time before trial or before the guilt phase is completed. See Pelache, 324 S.W.3d at 577; Villescas, 189 S.W.3d at 294.
Under a due process analysis, the issue is whether the appellant received sufficient notice of the enhancements so that he had the opportunity to prepare a defense to them and he was afforded an opportunity to be heard. See Oyler, 368 U.S. at 452; Ex parte Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013); Pelache, 324 S.W.3d at 577. An appellate court looks to the record to identify whether the defendant's defense was impaired by the timing of the State's notice. See Pelache, 324 S.W.3d at 577. When a defendant has no defense to an enhancement allegation and makes no suggestion of the need for a continuance in order to prepare a defense, notice given, even at the beginning of the punishment phase, satisfies the due process requirements of the United States Constitution as well as the due course of law requirements of the Texas Constitution. See Pelache, 324 S.W.3d at 577; Villescas, 189 S.W.3d at 294.
It is also well settled that it is not necessary to allege prior convictions for the purpose of the enhancement of punishment with the same particularity as must be used in charging the original offense. See, e.g., Freda v. State, 704 S.W.2d 41 (Tex. Crim. App. 1986); Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981); Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. [Panel Op.] 1979); Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978). The defendant is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial on the question of whether he is the named convict or that there was no final conviction. See Villescas, 189 S.W.3d at 293; Hollins, 571 S.W.2d at 875; see also Garza v. State, 383 S.W.3d 673, 676 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Derichweiler v. State, 359 S.W.3d 342, 349 (Tex. App.—Fort Worth 2012, pet. ref'd). In alleging a prior conviction for the enhancement of punishment, the allegations should include the court in which the conviction was obtained, the time of the conviction, and the nature of the offense. See Cole, 611 S.W.2d at 80; Hollins, 571 S.W.2d at 876. It is not necessary to allege the date of the commission of the prior offense or the date on which the prior conviction became final. See Hollins, 571 S.W.2d at 876 n.1 (date of commission of prior offense and date on which prior conviction became final); Derichweiler, 359 S.W.3d at 349 (date on which prior conviction became final).
B. Application of the Law to the Facts
First, we address Dean's argument that his right to due process was violated because he was deprived of (1) sufficient notice of the penalty the State sought to impose and (2) a fair opportunity to evaluate his options, including the merits of accepting a plea agreement. The record shows that the State filed its amended special plea of enhancement paragraphs on the first day of trial, but before voir dire. See Palache, 324 S.W.3d at 577 (determination of whether proper notice of enhancements given does not require notice be given within particular period of time before trial); Villescas, 189 S.W.3d at 294 (same). Dean objected, arguing "undue surprise on the Defense as far as trial strategy and also, as far as the way [the defense plans to] have to voir dire." In addition, defense counsel claimed that he had "not had ample time to discuss everything with [] Dean, being that [they] received notice on the day of trial." However, in response to the trial court's questioning, defense counsel admitted that, prior to the State's amended special plea of enhancement paragraphs, he knew Dean had been convicted of two prior felony offenses. Further, Dean did not request a continuance in order to prepare a defense. The trial court overruled Dean's objection, but made clear that it was not ruling on whether those enhancement paragraphs were true. During the hearing on punishment before the trial court, Dean pleaded true to the allegations in the enhancement paragraphs. The penitentiary packs, which included copies of the judgments of conviction, were admitted without objection. We conclude Dean's right to due process was not violated by the State's filing of the amended special plea on the day of trial, but before voir dire, because: (1) Dean did not request a continuance after receiving notice of the State's intent to enhance his punishment; (2) he did not complain that he was unprepared to contest the enhancement allegations, only that it might affect his trial strategy and voir dire; (3) defense counsel admitted he already knew of Dean's prior convictions; and (4) during the punishment phase of the trial, Dean pleaded true to the enhancement paragraphs and the penitentiary packs were admitted without objection. See Pelache, 324 S.W.3d at 577; Villescas, 189 S.W.3d at 294.
Next, we address Dean's argument that the trial court erred when it overruled his objection to the State's amended special plea because it was deficient as it did not specify the date of commission for the 2003 conviction. Dean did not object in the trial court on this basis, so his complaint on appeal is not preserved for appellate review. See TEX. R. APP. P. 33.1(a). Nevertheless, even if Dean had preserved this complaint for appellate review, it is well settled that it was not necessary for the State to allege his prior convictions for the purpose of the enhancing his punishment with the same particularity as must be used in charging the original offense. See, e.g., Freda, 704 S.W.2d at 41; Cole, 611 S.W.2d at 80; Coleman, 577 S.W.2d at 488; Hollins, 571 S.W.2d at 875. Further, it is not necessary to allege the date of the commission of the prior offense. See Hollins, 571 S.W.2d at 876 n.1.
We conclude the trial court did not err when it overruled Dena's objection to the State's amended special plea of enhancement paragraphs. Issue two is decided against Dean.
IV. CONCLUSION
Even if the trial court erred when it overruled Dean's objection to State's Exhibit No. 3, Dean was not harmed. Also, the trial court did not err when it overruled Dean's objection to the State's amended special plea of enhancement paragraphs.
The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160168F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F-1575244-J.
Opinion delivered by Justice Lang. Justices Brown and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered April 14, 2017.