Pearce v. State

Full title: JASON JOEL PEARCE, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jul 29, 2009

Nos. 05-07-01350-CR, 05-07-01351-CR (Tex. App. Jul. 29, 2009)

Opinion

Nos. 05-07-01350-CR, 05-07-01351-CR

Opinion Filed July 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 296-82295-05 and 296-82296-05.

Before Chief Justice THOMAS and Justices MORRIS and FRANCIS. Opinion By Chief Justice THOMAS.

LINDA THOMAS, Chief Justice.

OPINION

LINDA THOMAS, Chief Justice.

A jury convicted Jason Joel Pearce of sexual performance by a child and two counts of indecency with a child. Punishment for the sexual performance of a child offense was assessed at fifteen years' imprisonment. Punishment for the two indecency with a child offenses was assessed at ten years' imprisonment, probated for ten years. Appellant challenges all three convictions contending the trial court erred by not being present at all stages of the proceedings and by not including lesser-included offense instructions in the charge. Appellant also challenges the legal and factual sufficiency of the evidence to support his conviction for sexual performance by a child. We affirm the trial court's judgments.

Background¹

1 Appellant challenged the legal and factual sufficiency of the evidence only as it relates to whether there was sufficient evidence that the photographs of H.S. were lewd. Accordingly, we limit our review of the evidence and the proceedings in the trial court to that necessary to put appellant's complaints into context.

Appellant met H.S., the complainant in this case, when appellant was working as a substitute teacher in H.S.'s sixth grade class at Bowman Middle School. Appellant gave the students, including H.S., pictures of himself. He also brought albums of pictures of himself when he was younger to show the students. Appellant alluded to the existence of other photographs, in what he called Volume 3, that he said the students were too young to see. H.S. testified appellant "dangled" the existence of these photographs in front of them to make them want to see them. After the 2003-2004 school year, appellant was "blacklisted" from working at Bowman. The Human Resources Director told appellant there were rumors appellant was too friendly with the girls. Appellant "just let the Bowman issues go" and began substitute teaching at Williams High School, the same school H.S. attended in ninth grade. H.S. testified that in ninth grade she became close to appellant. Appellant would write H.S. and other girls passes so they could get out of their scheduled class and spend time with appellant during his off-period. H.S. had talks of a sexual nature with appellant during these periods, but the talks were about sex in general and never about her and appellant having sex. According to H.S., at the beginning of her ninth grade year, appellant offered her and her friend, H.F., a chance to be in Volume 3. H.F. confirmed appellant wanted to take pictures of H.S. and H.F. at appellant's house. H.F. thought appellant was requesting topless pictures. At Williams, appellant showed H.S. the pictures in Volume 3. Appellant led H.S. to believe the pictures in Volume 3 were of appellant or parties appellant had attended in college. The pictures were pornographic. Appellant also showed the pictures to H.F., A.B., D.R., H.A., and M.F., all female freshman students at Williams. H.S. turned fifteen in April 2005. Appellant sent her an e-mail wishing her a happy birthday and stating, "Here's hoping there's lots of frosting involved (nudge nudge wink wink)." H.S testified the "frosting" reference was to a picture in Volume 3 where a number of girls were covered with frosting and performing sex acts on each other. On May 3, 2005, appellant wrote H.S. a pass to allow her to see him during his off-period. H.S. testified that when she got to the room, her friend H.A. was there for a few minutes. Appellant took a few pictures of H.S. and H.A. After H.A. left, H.S. and appellant talked for a little while and then appellant gave H.S. a bottle of watermelon flavored lubricant as a birthday present. H.S. testified she previously had a conversation with appellant about watermelon and told appellant she had a "sexual fetish" for the taste of watermelon. Although appellant presented the lubricant in a joking fashion, H.S. believed appellant was implying he had done something for her, so she should do a favor for him. Appellant then asked if he could take some more pictures of H.S., including a picture of her looking at Volume 3. H.S. agreed. H.S. testified appellant said he wanted to take pictures of her with her birthday present. Appellant took pictures of H.S. with the lubricant, including a picture of H.S. lying on her back with her legs spread holding the lubricant against her genital area. According to H.S., appellant told her how to pose for the pictures. H.S. testified appellant then said he wished it was hotter because people tend to wear less. Appellant knew H.S. had brought her bathing suit to school to show her friend, M.F. Appellant asked if she would put on her bathing suit top and let him take pictures. Appellant watched H.S. as she changed into her bathing suit top and then took a picture of H.S. Appellant then told H.S. to take off the bathing suit top so he could take pictures of her topless. Appellant took a number of pictures of H.S. with her breasts completely exposed. H.S. testified appellant suggested the poses for the pictures and identified the pictures appellant took of her. Appellant then walked over to H.S. and, while facing her with his hand held up, asked her if she cared. H.S. knew appellant was asking if she minded if he touched her. She said she minded, but appellant grabbed her breast with his hand. H.S. tried to walk away from appellant. Appellant again asked H.S. if she minded and then put his hand down the front of her pants. Appellant made contact with H.S.'s genitals but did not penetrate her vagina. H.S. pulled away from appellant. While H.S. was putting her shirt on, appellant grabbed the back of H.S.'s pants and tried to pull them down, saying he wanted to take "one ass shot." Appellant took the pictures to be developed that same day, but used a false name, address, and telephone number to have the pictures developed. That evening, appellant e-mailed H.S. that "The pictures came out great! . . . I'll give them to you tomorrow. I really think you're going to like them. I think they're awesome!" H.S. testified appellant offered to take pictures of H.S. and M.F. and told her he was going to give her a card and a pornographic DVD for her birthday. H.S. told M.F. about the pictures. According to H.S., M.F thought it was a game and said maybe she could get some pictures too. H.S. did not think what had happened was "cool" and believed she had been sexually assaulted. M.F. testified she spoke to appellant about having similar pictures taken because appellant offered her money. Appellant e-mailed M.F. twice about the possibility of taking pictures of M.F., either alone or with H.S. After a friend of H.S.'s reported the incident to the police, Detective Luke Grant investigated the complaint and interviewed appellant. In both his statement to Grant and at trial, appellant admitted he took the photographs of H.S. and that he gave H.S. the watermelon lubricant. However, he claimed it was H.S.'s idea to put on the bathing suit top and to take the topless pictures. Appellant admitted he knew taking the pictures was "stupid and wrong" but took the pictures because he did not want to ruin his "cool guy" image. Appellant denied telling H.S. how to pose in the pictures and denied touching H.S. Grant found a birthday card for H.S. and a pornographic video called "Sweet and Young, Daddy's Girls Gone Bad" in appellant's backpack. Grant also seized a number of pornographic pictures from appellant's house. Although appellant initially denied showing the pornographic pictures in Volume 3 to his students, he admitted at trial that he had done so. Appellant also admitted he knew it was wrong to show the pictures to the students. Appellant testified the pictures were downloaded from the internet and were not of him in college. In Grant's opinion, appellant was a child molester who was grooming the girls involved. Child molesters tend to be immature and it is not unusual for a child molester's emotional level to be the same or a little above the child he is abusing. Dr. Kristi Compton, a psychologist, diagnosed appellant with Asperger's Syndrome, a form of autism. Asperger's Syndrome is a pervasive neurological development disorder that leads to marked impairment in social interaction, a failure to develop normal peer relationships to your age, intense and repetitive behaviors of an unusual focus, and an inability to sustain a conversation. In Compton's opinion, Asperger's Syndrome caused appellant to have an emotional age between thirteen and sixteen and to interact with children in the seventh through the ninth grade as if he were their peers. Compton cited one study of three individuals with Asperger's Syndrome that determined the three individuals did not have the capacity to form mental intent and commit a criminal act due to their lack of social understanding and processing. Compton, however, admitted she is not an expert on Asperger's Syndrome or how it relates to criminal responsibility. She conceded appellant's use of a false name, address, and telephone number to develop the pictures of H.S. indicated he knew his actions were wrong. Further, appellant never indicated during the evaluation that he had any problem understanding the difference between right and wrong. The jury acquitted appellant of sexual assault of a child, but convicted him of two counts of indecency with a child and one count of sexual performance by a child.

Right to a Fair Trial

In his first issue in each case, appellant contends he was denied his right to a fair trial because the trial judge, Nathan White, was absent from the trial for a period of time while the jury was deliberating in the punishment phase. We construe appellant's argument to be he was denied his right to due process because Judge White left the courtroom. We conclude appellant has shown no harm from Judge White's absence. See Tex. R. App. P. 44.2(a); Bright v. State, 165 Tex. Crim. 291, 293, 306 S.W.2d 899, 901 (1957). After the jury began deliberating during the punishment phase, Judge White told the parties he had to leave the courtroom, but that the bailiff could reach him by telephone and another judge would be available to receive the verdict. Judge White left the courtroom at 3:58 p.m. Appellant did not object to Judge White leaving. At 4:45 p.m., the jury indicated it was deadlocked on the issue of whether to grant probation. Judge Chris Oldner responded to the note with instructions for the jury to continue deliberating. Judge Oldner also denied appellant's motion for mistrial based on the length of the deliberations. Appellant then requested a mistrial due to Judge White's absence from the courtroom. Judge Oldner denied this motion as well. At 5:25 p.m., Judge White returned to the courtroom. Appellant did not request that Judge White grant a mistrial based on Judge Oldner's response to the jury's note, Judge White's absence from the courtroom, or the length of the jury's deliberations. At 7:45 p.m., the jury returned its verdict. Appellant contends Judge White's absence "deprived [appellant] of a valuable right to have the trial judge, as the impartial arbiter, present to rule on his objections and/or motions" and appellant was "harmed by the trial judge's absence." Appellant does not assert Judge Oldner's response to the jury note was incorrect or otherwise harmed appellant or that Judge Oldner erred by overruling appellant's motions for mistrial. Rather, appellant appears to be contending Judge White might have answered the jury note or ruled on appellant's motions for mistrial differently than Judge Oldner. However, when Judge White returned to the courtroom more that two hours before the jury returned its verdict, appellant did not request a different response to the jury's note or reurge appellant's motions for mistrial. Accordingly, appellant has failed to establish any harm from Judge White's absence from the courtroom during jury deliberations. See Bright, 165 Tex. Crim. at 293, 306 S.W.2d at 901 ("However, the judge's absence from the courtroom is not ground for a reversal unless injury or prejudice is shown to have resulted therefrom, and a judgment will not be reversed if the appellant's bill of exception fails to show the occurrence or anything of an objectionable character during the judge's absence."); Jimenez v. State, 838 S.W.2d 661, 665-66 (Tex.App.-Houston [1st Dist.] 1992, no pet.) (appellant failed to show harm from substitution of trial judge after two days of testimony). We overrule appellant's first issue in each case.

Lesser-Included Offenses

In his second issue in each case, appellant contends the trial court erred by denying his request to include in the jury charge a lesser-included offense instruction for attempted sexual assault "and/or" assault in the sexual assault case and for improper photography or visual recording in the sexual performance by a child case. Appellant argues he did not have the required intent or cognitive ability to commit the offenses because of his diminished capacity from Asperger's Syndrome. In evaluating alleged jury charge error, we first determine whether error occurred and then determine whether the error caused sufficient harm to warrant reversal of the conviction. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994). If, as in this case, the defendant timely objected to the charge error, we reverse the conviction if the defendant suffered some actual harm as a result of the error. Id. at 732; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). If a defendant requests a lesser-included offense instruction, it must be included in the jury charge if (1) the requested instruction is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Young v. State, 283 S.W.3d 854, 875 (Tex.Crim.App. 2009) (per curiam); Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). In determining whether the defendant is entitled to a charge on a lesser-included offense, we must consider all of the evidence introduced at trial. Young, 283 S.W.3d at 875. However, we may not consider the "credibility of the evidence and whether it conflicts with other evidence or is controverted." Id. at 875-76. We first turn to appellant's complaint the trial court erred by not including a lesser-included offense instruction for assault in the sexual assault of a child case. During the charge conference, appellant requested only a lesser-included offense instruction on attempted sexual assault. The trial court had no duty to submit sua sponte a lesser-included offense instruction on assault and, therefore, did not err by failing to do so. See Delgado v. State, 235 S.W.3d 244, 250 (Tex.Crim.App. 2007). We next consider whether the trial court erred by denying appellant's request for a lesser-included offense instruction for attempted sexual assault and for improper photography or visual recording. Assuming that these offenses are lesser-included offenses of the charged offenses, we conclude appellant has failed to establish there was some evidence that if he was guilty, he was guilty of only the lesser offense. Appellant's specific complaint is that Asperger's Syndrome diminished his capacity to form a culpable mental state. Under Texas law, diminished capacity is not recognized as an affirmative defense, i.e., a lesser form of the insanity defense. Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App. 2005); Gassaway v. State, No. 05-07-00922-CR, 2009 WL 1547756, at *3 (Tex.App.-Dallas June 4, 2009, no pet. h.). However, diminished capacity is recognized as a simple failure-of-proof defense in which the defendant claims the State failed to prove he had the required state of mind at the time of the offense. Jackson, 160 S.W.3d at 573; Gassaway, 2009 WL 1547756, at *3. A defendant may present evidence, including evidence of his history of mental illness, to negate the mens rea element. Ruffin v. State, 270 S.W.3d 586, 593 (Tex.Crim.App. 2008); Jackson, 160 S.W.3d at 574. The trial court has the discretion to determine whether the evidence supports a lesser-included offense instruction. Jackson, 160 S.W.3d at 574. Compton testified appellant has Asperger's Syndrome and that one study has shown individuals with Asperger's Syndrome are unable to form criminal intent. Appellant argues he was entitled to the lesser-included offense instructions because otherwise the "jury was not able to take into consideration whether or not [appellant] had the requisite intent to commit the offense . . . because of his diminished capacity based on his diagnosis of Asberger's [sic] Syndrome which Dr. Kristi Compton had testified about." However, the evidence on which appellant relies supports only that appellant could not form any criminal intent, not that appellant might have a lower culpable mental state. See Jackson, 160 S.W.3d at 574 n. 4. Further, the lesser-included offenses requested by appellant do not have a lower mens rea than the charged offenses. See Tex. Penal Code Ann. §§ 15.01(Vernon 2003) (need "specific intent to commit an offense" and act amounting to more than preparation for criminal attempt), 22.01(a)(2) (Vernon Supp. 2008) ( mens rea of intentionally or knowingly to commit sexual assault of a child), 21.15(b)(1) (Vernon Supp. 2008) (person commits offense of improper photography or visual recording if he photographs or visually records an image of another that is not in bathroom or private dressing room without person's consent and with intent to arouse or gratify sexual desire of any person), 43.25 (Vernon Supp. 2008) (person commits offense of sexual performance of a child if,knowing character and content of performance, he employs, authorizes, or induces child to engage in performance). Appellant has failed to show how he could have the requisite mental state to commit the requested lesser offenses, both of which involved intentional or knowing mens rea, without having the requisite mens rea to commit the offenses charged. Appellant has not shown there is some evidence that would permit a rational jury to find appellant had the requisite mental state to be guilty only of the lesser offenses. Accordingly, the trial court did not err by denying the requested lesser-included offense instructions. We overrule appellant's second issue in each case.

Sufficiency of the Evidence

In his third issue on the improper sexual performance by a child offense, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, appellant contends the State failed to prove H.S. engaged in a lewd exhibition of any portion of the female breast below the top of the areola. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Klein v. State, 273 S.W.3d 297, 302 (Tex.Crim.App. 2008). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007). We will set aside the verdict only if the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 704-05; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007). A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than eighteen years of age to engage in a performance that includes sexual conduct. Tex. Penal Code Ann. § 43.25(b). The sexual conduct alleged here was the "lewd exhibition of any portion of the female breast below the top of the aerola." See Tex. Penal Code Ann. § 43.25(a)(2). Appellant contends there was no evidence or insufficient evidence that any of the photographs of H.S. were lewd. The term "lewd" is not statutorily defined, but has a common meaning that jurors can be fairly presumed to know and apply. Tovar v. State, 165 S.W.3d 785, 790 (Tex.App.-San Antonio 2005, no pet.). When a child is the subject of a photograph, lewdness is not to be considered a characteristic of the child, but rather a characteristic of the photograph itself. Alexander v. State, 906 S.W.2d 107, 110 (Tex.App.-Dallas 1995, no pet.); Young v. State, 242 S.W.3d 192, 200 (Tex.App.-Tyler 2007, no pet.). Whether the content of a photograph constitutes a lewd or lascivious exhibition depends on the intent of the photographer. Alexander, 906 S.W.2d at 110; Young, 242 S.W.3d at 200. Intent can be inferred from acts, words, or conduct. Alexander, 906 S.W.2d at 110. In determining if a visual depiction of a child is lewd, courts should consider whether (1) the focal point of the visual depiction is the child's genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer. Alexander, 906 S.W.2d at 110; Tovar, 165 S.W.3d at 791. The record shows appellant took photographs of H.S., a child younger than 18 years of age, in which H.S. was completely topless. The focal point of the pictures are H.S.'s breasts and the expression on her face does not indicate shock or surprise. H.S. testified appellant told her how to pose for each of the photographs. In one of the photographs, H.S. is holding the bottle of watermelon lubricant to her breasts. In two of the photographs, H.S.'s pants are unzipped and pulled partially down her legs, revealing H.S.'s panties. In one of these pictures, H.S. is holding the bottle of watermelon lubricant given to her by appellant against her genitals. The pictures suggest a willingness by H.S. to engage in sexual activity. After carefully reviewing the record, we believe a rational juror could find the pictures of H.S. were lewd. Therefore, applying the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support appellant's conviction for sexual performance by a child. We overrule appellant's third issue in case number 05-07-01350-CR. We affirm the trial court's judgments.