Opinion
No. 05-01-01414-CR, No. 05-01-01415-CR.
Opinion issued July 2, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause Nos. F99-72682-LH and F99-72739-LH. AFFIRMED.
OPINION
Dwayne Thomas Spruiell appeals his convictions for aggravated sexual assault of a child under the age of fourteen. A jury found appellant guilty of the offenses in both cases and assessed punishment at twenty-two years' imprisonment and a fine of $10,000 in each case. The trial court sentenced appellant to concurrent terms in accordance with the jury's verdict. In sixteen points of error, appellant complains of errors in untimely disclosure of exculpatory evidence, the admission of evidence bolstering the credibility of the complainant, the admission of prejudicial photographs, the admission of victim impact evidence, denying a motion for new trial after the complainant testified she wanted the jury to know the truth, and improper jury argument. We affirm the trial court's judgment in each case.
Background
Appellant was indicted in separate cases for the aggravated sexual assault of his stepdaughter, M.D. The first indictment charged appellant caused his mouth to contact M.D.'s genitals when she was approximately nine years old. The second indictment charged appellant with contacting and penetrating M.D.'s genitals with a vibrator when she was approximately eleven years old. Appellant married M.D.'s mother, Nikki, when M.D. was eight years old. At that time, M.D. lived with her mother, her younger brother Gabriel, and younger sister Cynthia. In 1998, Nikki and appellant had a child named William. M.D. testified appellant began touching her within a few weeks or months after he married her mother and came to live with them. She described him touching her vagina, breasts, and butt with his fingers at first, then with his mouth, and later with a vibrator. She also testified appellant would make her masturbate him with her hand and perform oral sex on him. She described in great detail several incidents with appellant. The incidents occurred both in the house when everyone else was asleep or at work, and in appellant's car. She testified appellant told her never to tell anyone about what he was doing because it would ruin everyone's lives and no one would believe her and her baby brother William would not have a father if she told. When M.D. was eleven and in sixth grade, she told two of her friends about her stepfather's abuse. They told the school counselor, who contacted Child Protective Services (CPS). Initially, M.D. denied that the abuse was occurring and signed a written statement denying the abuse. A few days later, in early October 1999, M.D. told her grandmother and her teacher that the abuse really was happening. The teacher contacted the police and CPS because M.D. was afraid to be with her stepfather now that she had told. M.D. was taken to CPS where she gave a videotaped statement to the caseworker detailing the assaults. The State also called several other witnesses, including M.D.'s mother, her grandmother, her teacher, the CPS caseworker, a pediatrician experienced in child abuse who examined M.D., a police detective and an investigator, and a forensic specialist who conducted DNA tests on the car seats from appellant's vehicle. The State also offered physical evidence including the vibrator and a pornographic video tape recovered from the home. Appellant cross-examined most of the State's witnesses, called two reputation witnesses to impeach M.D.'s and her mother's reputation for truthfulness, and offered M.D.'s written statement denying the sexual abuse.Discussion
Exculpatory Evidence In points one through three, appellant complains his constitutional due process rights were affected by the State's failure to timely disclose exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Appellant filed a pretrial motion requesting all exculpatory evidence. The trial court granted the motion. The State disclosed several items to appellant before trial. During voir dire on the first day of trial, the State provided certain records from CPS to appellant's trial attorney. These records contained summaries of brief interviews the caseworker had with M.D., appellant, and M.D.'s sister Cynthia in October of 1999. Under Brady, the prosecution has an affirmative duty to turn over favorable, material evidence to the defense. Brady, 373 U.S. at 87. This duty extends to both exculpatory evidence and impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). To find reversible error under Brady and Bagley, a defendant must show that:1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith;
2) the withheld evidence is favorable to him;
3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). We must analyze the alleged Brady violation "in light of all the other evidence adduced at trial." Id. at 612-13. We do not apply the separate harmless error standard for reversal for constitutional error contained in rule 44.2(a) of the Texas Rules of Appellate Procedure. Id. at 612. When, however, the State discloses the evidence at trial, "the defendant must show that had the State disclosed the potentially exculpatory material earlier, there is a reasonable probability that the outcome of the proceeding would have been different." Hampton, 86 S.W.2d at 612 n. 26 (emphasis original); Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999) (stating that when defendant had been aware of other evidence showing that defendant's colleague had motive to murder victim, delayed disclosure did not prejudice him). If appellant received the material in time to use it effectively at trial, his conviction should not be reversed because it was not disclosed as early as it might have and should have been. Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999) (citing United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985)). We begin with the State's argument that appellant waived his complaint about the exculpatory evidence by not objecting and requesting a continuance until the third day of trial. Like many other rights, the right to timely disclosure of exculpatory evidence may be lost by procedural default. See Wilson, 7 S.W.3d at 146. To preserve error, a timely complaint must be made to the trial court. Tex.R.App.P. 33.1(a)(1). Normally, a complaint is timely if it is made as soon as the grounds for complaint are or should be apparent. Wilson, 7 S.W.3d at 146. On the second day of trial and before any witnesses testified, appellant's trial counsel made clear to the trial court that he felt the disclosure on the first day of trial was late and he was hampered by the late disclosure. He requested the trial court to order the State to turn over any additional exculpatory information it had, and the trial court did so. Trial counsel stated he would not move for a continuance; however, the next day, he did file a written but unsworn motion for mistrial or for continuance based on the late disclosure. In Wilson, the evidence was disclosed five days before testimony began, but the defense did not request a continuance or move for a mistrial until after both sides had rested their cases in chief. 7 S.W.3d at 146. The defense learned during the State's rebuttal that the State had learned of the evidence much earlier than had been indicated and asked the trial court for a continuance to continue its ongoing investigation. Id. The court held the complaint was not timely and the defendant had not preserved the alleged Brady violation. Id. Following Wilson, we conclude appellant did not timely raise his Brady complaint. Although he complained the disclosure was late, appellant did not request a continuance, rather, he told the trial court he would not move for a continuance and only requested the court to instruct the prosecution to turn over any additional information, which the trial court did. It was not until the third day of trial that appellant filed his written but unsworn motion for mistrial or for continuance. Appellant's complaint was not timely. See Tex.R.App.P. 33.1(a)(1); Wilson, 7 S.W.3d at 146. Even if we considered appellant's complaint timely, it would fail. The document in question is a single page containing three separate statements recorded by the CPS caseworker. Appellant contends each of these statements was favorable to his defense: (1) when asked if she had heard of CPS, the complaining witness said that when she was in second grade, her mother had taken her to "this big house" where CPS questioned her about a boy touching her. She described this boy touching her leg and said it was simply a boy she knew and not a relative. (2) appellant told the caseworker that after the outcry he overheard his wife say "something like `when [complainant] was five Gabriel's father did it too'." (3) a few days after CPS began its investigation, the caseworker interviewed the complainant's four-year old sister, who said, "one time my sister lied and said that my sister was mad and Daddy was touching her. . .Mom and Dad were fighting and Gabriel and I were crying. . .she was going to live with her Daddy." The caseworker asked the sister if "she ever saw her father touching [complainant] and she said, `no.'" We briefly address the first and second statements. The first statement is neither favorable to appellant nor material. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." Hampton, 86 S.W.3d at 612 (quoting United States v. Agurs, 427 U.S. 97, 109 (1976)). The statement is not inconsistent with the witness's testimony at trial and was simply an explanation that she had been to the CPS facility in the past. The second statement was reported to CPS by appellant himself, thus he was aware of the information and the failure to disclose the report earlier could not have harmed him. Hayes v. State, 85 S.W.3d 809, 814-15 (Tex.Crim.App. 2002) (finding no Brady violation for failure to disclose letter defendant wrote to his mother-in-law because defendant was aware of the existence and contents of letter). Appellant's brief focuses on the third statement. Appellant does not explain what additional steps he could have taken to investigate this evidence had it been disclosed earlier. The trial court allowed appellant to interview the victim's mother, Nikki, during trial about the statements. He was also able to cross-examine her before the jury about the fact that she refused his request to interview her other children to determine whether they may know something that would help the defense. Nothing in the record indicates the mother would have allowed defense counsel to interview her other children had the statement been disclosed earlier. The only basis for appellant's claim of materiality is the affidavit of his trial attorney filed in support of the motion for new trial. Defense counsel stated he did not have sufficient time to adjust his trial strategy and his strategy was negatively impacted because he was forced to reserve his cross-examination of some of the State's witnesses. He does not suggest how he would have changed his strategy or that he would not have called a particular witness or would have called an additional witness if the evidence had been disclosed sooner. See O'Rarden v. State, 777 S.W.2d 455, 458 (Tex.App.-Dallas 1989, pet. ref'd) (defense would not have called caseworker to testify about extraneous abuse allegations against defendant concerning victim's sister had doctor's examination of child and conclusion of no abuse been disclosed earlier). We conclude that the statements were not material under the record in this case. Appellant has not shown a reasonable probability that had the statements been disclosed earlier, the outcome of the trial would have been different. Hampton, 86 S.W.3d at 612 n. 26; Wilson, 7 S.W.3d at 146. Accordingly, the trial court did not err in denying either appellant's motion for mistrial, motion for continuance, or motion for new trial. We overrule appellant's first three points of error.
Credibility Evidence
In point four, appellant complains the trial court erred in overruling his objection to a statement by the CPS caseworker that "children don't make up allegations of sexual abuse." The caseworker was describing how M.D. initially denied the abuse and said she had told her friends appellant was abusing her to see which one could keep it a secret. The caseworker had M.D. write a statement to that effect. The State then asked the caseworker:Q. And what did you do at that point? Did you close the case and say it's over with?
A. No.
Q. Why not?
A. Because children don't make up allegations of being — that's not something they tell as a secret.Appellant's trial counsel objected to the statement as "improper speculation." The objection was overruled. The witness then testified without objection:
Q. Can you tell us why you didn't close the case right there?
A. In my opinion and my experience children don't make up sexual abuse. They don't make outcries to tell friends to see which one can keep that secret. So I had a lot of concerns why the child is saying that and I hadn't done anything else. I hadn't completed the investigation. All I had done is talk to the victim. I had several other family members to talk to, other people to learn whether or not the allegation was true at that point. So it wasn't closed.
Q. And let me make sure I understand. Are you saying that no children ever make up sexual abuse?
A. No.
Q. So you're saying what, that — are you talking about the circumstances specifically here?
A. Uh-huh, yes.Appellant's complaint on appeal has not been preserved by a proper and specific trial objection. On appeal, appellant argues it is improper for a witness to offer a direct opinion as to the truthfulness of another witness, citing rules 701 and 702. Tex. Rs. Evid. 701, 702. Such testimony is not admissible because it does not assist the trier of fact in understanding the evidence or deciding a fact in issue. See Schutz v. State (Schutz I), 957 S.W.2d 52, 59 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706, 710-11 (Tex.Crim.App. 1993) (op. on rehr'g). However, trial counsel did not object on either of these grounds. The objection was "improper speculation," an objection to the lack of personal knowledge under rule 602. Tex.R.Evid. 602 (witness may not testify unless sufficient evidence to support finding of personal knowledge of the matter). The objection on appeal will not be considered if it does not comport with the objection made at trial. See Tex.R.App.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Point of error four is overruled.
Photographs of the Complainant
In points five through ten, appellant complains the trial court erred in admitting two photographs of M.D., one where she was eleven years old and holding a puppy, and one where she was nine years old and with a woman holding a kitten, over his objections under rules 401, 402, and 403. Tex. Rs. Evid. 401, 402, 403. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Thus, absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). As long as the trial court's ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling. Feldman v. State, 71 S.W.3d 738, 755 (Tex.Crim.App. 2002). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R.Evid. 401. The evidence "need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Montgomery v. State, 810 S.W.2d 372, 376 (Tex.Crim.App. 1990). Relevant evidence is generally admissible; irrelevant evidence is not admissible. Tex.R.Evid. 402. At the time of trial, M.D. was thirteen years old. The State was required to prove that at the time of each indicted offense, M.D. was a child younger than fourteen years of age. The pictures showed M.D. at ages nine and eleven, her age at the time of each of the alleged offenses. We conclude the photographs had some tendency to prove that M.D. was a child under the age of fourteen at the time of the alleged offenses. Tex.R.Evid. 401. The trial court did not abuse its discretion in overruling appellant's objections under rules 401 and 402. Appellant also objected that the photographs were inadmissible under rule 403. He argues the photographs were unduly sentimental and were likely to "unfairly tug at the jury's heartstrings." Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex.R.Evid. 403. The trial court may consider a number of factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the photographs, including how probative is the evidence, the potential of the evidence to impress the jury in some irrational but nevertheless indelible way, the time the proponent needs to develop the evidence, and the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000) (citing Montgomery, 810 S.W.2d at 389-90). Applying these factors as objectively as possible to determine whether the trial court abused its discretion, we conclude the trial court's decision was within the zone of reasonable disagreement. The probative value of the photographs may have been slight, but the danger of unfair prejudice is even less. The photographs are nothing more than typical snapshots of a child. The presence in the photographs of a small dog and a kitten did not so appeal to the emotions of the jury that we could conclude the jury decided the case on an emotional basis rather than on the other evidence introduced at trial. Applying the appropriate appellate review of the trial court's decision, the trial court did not abuse its discretion in admitting the photographs over appellant's objections. Points of error five through ten are overruled.Evidence of Financial Situation
In point eleven, appellant complains the trial court erred in overruling his objection to testimony by M.D.'s mother about her "financial situation since this happened." The prosecutor asked, "How is the financial situation since this happened?" and appellant objected under rules 401, 402, and 403. The trial court overruled the objection and the witness testified,A. Financially I was — I was about a month behind on all my bills for about — roughly for about two to three months. I worked three jobs to maintain. It was difficult financially. And I since have gotten other jobs and things are better now.The State argues this evidence was relevant to rebut the topic of false outcry raised by appellant during voir dire. The State says evidence of the financial hardship caused by appellant's arrest created a strong disincentive for M.D. and her mother to fabricate the charges in this case. Applying the appropriate standard of review for evidentiary rulings discussed earlier, we conclude the trial court did not abuse its discretion in finding this evidence at least "tend[ed] to affect the probability of the truth or falsity of a fact in issue" and was relevant. Montgomery, 810 S.W.2d at 376. We also conclude the trial court did not abuse its discretion in overruling the rule 403 objection. See id. at 389-90. Assuming the trial court did err in admitting this evidence, we conclude the error did not affect appellant's substantial rights. Tex.R.Evid. 103(a); Tex.R.App.P. 44.2(b). Appellant does not argue the error was constitutional error. See Tex.R.App.P. 44.2(a). We agree and determine whether the erroneous admission of the evidence affected appellant's substantial rights. Tex.R.App.P. 44.2(b). A substantial right is affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In determining whether the error was harmful under rule 44.2(b), we consider everything in the record. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). Considering the record as a whole, "we have a fair assurance that the error did not influence the jury, or had but a slight effect." Id. (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001)). Appellant's eleventh point of error is overruled.