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finding sufficient evidence to support an inference that complainant was unlikely to resist when defendant knew complainant was "very drunk," offered to "take care" of complainant, and then took off complainant's clothes and began to perform oral sex on him in an "aggressive" manner
Summary of this case from Felix v. StateOpinion
No. 05-05-01455-CR
Opinion Filed November 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00188-VS. Affirmed.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
OPINION
Appellant appeals his jury conviction for sexual assault. After the trial court found appellant had previously been convicted of a sexual assault related crime in another state, it assessed a mandatory life sentence. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2006). In nine issues, appellant generally contends (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred in refusing to allow him to cross-examine the victim regarding a potential lawsuit, (3) the trial court abused its discretion in denying his motion for new trial, (4) the trial court abused its discretion in admitting hearsay statements, and (5) his life sentence constitutes cruel and unusual punishment. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for the sexual assault of E.V.B., an adult male. Appellant met E.V.B. because E.V.B.'s grandparents were devoutly Catholic and attended the Church of the Holy Spirit, where appellant was the parish priest. Although E.V.B. did not regularly go to church as a child, in late 2001 or early 2002, his junior year of high school, he became interested in Catholicism and began stopping by the church to ask appellant questions. E.V.B. and appellant became friends and E.V.B. began attending mass regularly. In April 2002, at the Church's request, appellant resigned his ministry and was no longer the priest at the Church of the Holy Spirit. After leaving the Church of the Holy Spirit, appellant remained close to E.V.B.'s family and E.V.B. On one occasion, shortly after E.V.B.'s graduation from high school and after his eighteenth birthday, appellant and E.V.B. drove to Lubbock to go shopping and have lunch. That afternoon, appellant told E.V.B. he was homosexual. Later that evening, appellant gave E.V.B. a back rub that made E.V.B. feel uncomfortable. E.V.B. then began avoiding appellant. A few months later, however, appellant and E.V.B. both attended the wedding of E.V.B.'s cousin in Irving, Texas. E.V.B. and his parents stayed at the same motel as appellant, which was near the reception site. At the reception, E.V.B. became highly intoxicated. E.V.B. testified that he drank at least ten beers, three "rum and cokes," and some scotch. E.V.B. was so intoxicated at the reception that he threw up in the lobby of the hotel where it was being held. When E.V.B. finally decided to leave, he walked back to his hotel alone. E.V.B.'s parents had already left the reception and E.V.B. was too drunk to go out with other family members. During the walk back, E.V.B. threw up again and walked into the wrong motel before arriving at his own motel. When E.V.B. approached his room, appellant, who was in the room next door, apparently heard E.V.B. and opened his door. E.V.B. told appellant he was drunk and had been throwing up. Appellant offered to "take care" of E.V.B.E.V.B. agreed and went into appellant's room. E.V.B. was still sick and appellant guided him into the bathroom where he threw up again. Appellant washed E.V.B.'s face and guided him to a chair. Although E.V.B. could walk, he stumbled "heavily." Appellant again told E.V.B. he would take care of him and began rubbing his chest and crotch. Appellant unsnapped E.V.B.'s pants and began fondling his genitals. Appellant removed E.V.B.'s pants and underwear and began to perform oral sex on E.V.B.E.V.B. testified it hurt and he thought appellant had bit him. Nevertheless, during the assault, the only resistance E.V.B. offered was to hold his shirt down to prevent appellant from removing it. E.V.B. explained he was in shock, petrified, and intoxicated. Moreover, E.V.B. testified he could not have effectively resisted had he tried. After the assault, E.V.B. became "more conscious" of what was going on, became angry and asked appellant why he did "it." Appellant told E.V.B. he was an adult and there was nothing E.V.B. could do about it. E.V.B. threatened to destroy appellant and went to his parents' room. The following evening, E.V.B. told his mother what appellant had done. The next day, E.V.B. reported the offense to church officials and went to the hospital for an exam. The exam showed E.V.B. had several abrasions on his penis. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to show the sexual contact was without E.V.B.'s consent. In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict is clearly wrong and manifestly unjust. Watson v. State, PD-469-05, 2006 WL 2956272 at *10-11. Because E.V.B. was an adult at the time of the offense, the State was required to prove that the sexual contact occurred without E.V.B.'s consent. The penal code provides several manners in which a sexual contact is without consent. See Tex. Pen. Code Ann. § 22.011(b) (Vernon Supp. 2006). Here, appellant was indicted under two such manners. First, the indictment alleged the contact was without consent under section 22.011(b)(3) of the penal code because E.V.B. did not consent and appellant knew E.V.B. was physically unable to resist. See Tex. Pen. Code Ann. § 22.011(b)(3) (Vernon Supp. 2006). The indictment also alleged the contact was without consent under section 22.011(b)(10) of the penal code because appellant was a clergyman who caused E.V.B. to submit or participate by exploiting E.V.B.'s emotional dependency on appellant in appellant's professional character as spiritual adviser. See Tex. Pen. Code Ann. § 22.011(b)(10) (Vernon Supp. 2006). The jury was charged under both theories and found appellant guilty as alleged. Thus, proof of guilt under either theory will support appellant's conviction. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Appellant first contends the evidence is legally and factually insufficient under section 22.011(b)(3) because the State failed to show appellant knew E.V.B. was physically unable to resist. According to appellant, the evidence is insufficient because he was not unconscious or otherwise unable to move. Appellant misconstrues the relevant inquiry under section 22.011(b)(3). The court of criminal appeals has held that it will not strictly interpret the requirement that a defendant know the victim be physically unable to resist in determining sufficiency of the evidence to support a sexual assault conviction. Elliot v. State, 858 S.W.2d 478, 485 (Tex.Crim.App. 1993). Instead, the court held that, where a victim has not in fact consented, the State need prove only that the actor knows the victim's physical impairment is such that resistence is not reasonably likely to be expected. See Elliot, 858 S.W.2d at 485. Here, the record shows that E.V.B. was very drunk, told appellant he was very drunk, and could barely walk. Appellant invited E.V.B. to stay in his room so appellant could "take care" of him. After E.V.B. threw up with appellant's assistance, appellant guided him to a chair in the room where appellant proceeded to remove E.V.B.'s pants. Appellant then performed oral sex on E.V.B. Appellant's assault was so aggressive that E.V.B. was left with several abrasions on his penis. Finally, E.V.B. testified that he could not have effectively resisted appellant's assault. Reviewing the evidence in the light most favorable to the prosecution, the jury could have determined that appellant knew E.V.B.'s physical condition was such that any resistence was unlikely. Thus, the evidence is legally sufficient to support appellant's conviction. Further, reviewing the evidence in a neutral light, we cannot conclude the jury's finding of guilt was clearly wrong and manifestly unjust. We resolve the first and second issues against appellant. In the third and fourth issues, appellant contends the trial court erred in preventing him from cross-examining E.V.B. about his intention to file a civil suit against appellant and the Catholic Church. The State filed a motion in limine seeking to require appellant to approach the bench before presenting any evidence that E.V.B. or his family retained counsel to file suit against appellant and the Catholic Church. The trial court granted the motion in limine stating it would want to hear evidence regarding a potential civil suit before allowing that evidence before the jury. It is well settled that a ruling on a motion in limine does not preserve error. See Wilson v. State, 7 S.W.3d 136, 144 (Tex.Crim.App. 1999). Thus, the issue is whether appellant preserved error at trial. The record of the trial proceedings is silent regarding whether appellant ever sought to impeach E.V.B. with evidence of a potential lawsuit. However, appellant filed a motion for new trial based on newly discovered evidence that after the jury began its deliberations, E.V.B. filed suit against appellant and the Catholic Church. During the hearing on the motion for new trial, the trial court purported to take "judicial notice" that it had, during trial, ruled that it would not allow E.V.B. to be impeached with evidence of an anticipated civil suit. In these issues, appellant asserts the trial court erred in "preventing" him from cross-examining the victim about his intent to file suit. However, because appellant's objection and the trial court's ruling was not recorded, it is unclear when any proffer was made, and what the precise proffer was, and specifically what evidence appellant presented to establish the relevance of the potential suit. Cf. Hoyos v. State, 982 S.W.2d 419, 421-22 (Tex.Crim.App. 1998) (failing to conclude trial court abused its discretion when the appellant did not present trial court with evidence establishing relevance of potential civil suit at the time of trial.) Under such circumstances, it is impossible for us to determine whether the trial court abused its discretion in limiting appellant's cross-examination of the victim. Because the record of the trial proceedings does not show appellant timely attempted to cross-examine E.V.B. about the civil suit, we conclude appellant waived any alleged error regarding the cross-examination. We resolve the third and fourth issues against appellant. In his fifth issue, appellant contends the trial court erred in denying his motion for new trial. Appellant filed a motion for new trial based on "newly discovered evidence" that E.V.B. filed the lawsuit against appellant and the Catholic Church. In this issue, appellant cites no authority to support his argument that a new trial should have been granted on this or any other specific ground. Therefore, this issue is inadequately briefed and presents nothing to review. See Tex.R.App.P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000) (failure to cite relevant authority waives error). We resolve the fifth issue against appellant. In his sixth issue, appellant contends the trial court erred in admitting testimony from Nurse Michele Gorday concerning what E.V.B. told her about the sexual assault. Appellant objected to Gorday's testimony concerning E.V.B.'s out-of-court statements on the basis of hearsay. However, the record shows that when the State offered Gorday's "Sexual Assault Forensic Examination Record" containing the same out-of-court statements, appellant affirmatively stated he had no objection. When the same evidence is admitted at trial with no objection, any error in admission of the same evidence is not reversible. Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004). We resolve the sixth issue against appellant. In the seventh and eighth issues, appellant contends the trial court erred in admitting three letters from the files of the Amarillo Diocese concerning appellant's relationship with the Catholic Church during the period before and after the assault. According to appellant, the trial court erred in admitting these letters because they were hearsay. However, two of these letters were written by appellant and were thus, by definition, not hearsay. See Tex. R. Crim. Evid. 801(2)(3); Hislop v. State, 64 S.W.3d 544, 545 (Tex.App.-Texarkana 2001, no pet.) . The final letter was written to appellant from the Amarillo Diocese. This letter was apparently admitted as a business record of the Amarillo Diocese. Assuming the trial court erred in admitting this letter, we conclude any error was harmless. See Tex.R.App.P. 44.2(b). A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999); Jones v. State, 111 S.W.3d 600, 604-05 (Tex.App.-Dallas 2003, pet. ref'd). Here, the letter from the Diocese to appellant referred to E.V.B.'s report of sexual assault and appellant's failure to "keep [his] part of the covenant agreement." Other testimony and evidence was presented establishing E.V.B.'s allegations. After reviewing the record as a whole, we conclude the jury would have placed little, if any, weight on the Diocese's letter. We resolve the seventh and eighth issues against appellant. In the ninth issue, appellant asserts his life sentence violates the Eighth Amendment to the United States Constitution. The trial court sentenced appellant to an automatic life sentence under the provisions of section 12.42(c)(2) of the Texas Penal Code. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2006). According to appellant, his life sentence is disproportionate to the offense. A defendant's right to be free from cruel and unusual punishment can be waived by a failure to object. Casteneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.); Steadman v. State, 160 S.W.3d 582, 586 (Tex.App.-Waco 2006, pet. ref'd). Here, appellant did not object that his sentence violated the Eighth Amendment in the trial court, either at the time of sentencing or in a motion for new trial. Thus, he waived this issue for appellate review. Castendeda, 135 S.W.3d at 723. We resolve the ninth issue against appellant. We affirm the trial court's judgment.