Summary
finding that a one-witness-rule instruction constituted a comment on the weight of the evidence because it "singled out the complaining witness's testimony"
Summary of this case from Turner v. StateOpinion
No. 05-09-00093-CR.
Opinion issued August 17, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 26830-422.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
OPINION
Zachary Wayne Wesbrooks was indicted on two counts of aggravated sexual assault of a child. The jury convicted him on one count and acquitted him on the other; it assessed his punishment at ninety-nine years' imprisonment and a $10,000 fine. In two appellate issues, Wesbrooks contends the trial court improperly instructed the jury and admitted irrelevant evidence during the punishment phase of the trial. We affirm the trial court's judgment.
Background
On occasion, Wesbrooks's wife babysat the complaining witness and her two sisters while their mother worked. On February 5, 2006, Wesbrooks was at home helping his wife take care of the three sisters and their own daughter. The complaining witness was five-years-old at the time. After her mother had picked the girls up from the Wesbrooks's home and taken them home, the complaining witness told her mother-using childlike terminology-that Wesbrooks had licked her sexual organ. The mother took the complaining witness to the police that same evening; the child repeated the report of Wesbrooks causing oral contact with her sexual organ. Approximately two weeks later, the complaining witness underwent a forensic interview. This time the child reported the oral contact and, for the first time, digital penetration of her sexual organ. Wesbrooks was indicted and tried for two offenses: Count 1 alleged digital penetration of the complaining witness's sexual organ, and Count 2 alleged oral contact with the complaining witness's sexual organ. The jury acquitted Wesbrooks on Count 1 and convicted him on Count 2. It then assessed his punishment at ninety-nine years' imprisonment and a $10,000 fine. Wesbrooks appeals.Jury Instruction
In his first issue, Wesbrooks contends the trial court's charge to the jury contained an improper comment on the weight of the evidence. The court instructed the jury, on both charged offenses, that:Article 38.07 of the Texas Code of Criminal Procedure provides that a conviction under the Penal Code for this offense is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. The requirement that the victim inform another of an alleged offense does not apply if the victim was younger than eighteen years of age at the time of the alleged offense.Wesbrooks objected to the instruction on both charges, arguing the instruction was a comment on the weight of the evidence. We agree. It is true that an appellate court may uphold a conviction on the uncorroborated testimony of the complaining witness under the circumstances described in the trial court's instruction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). However, this instruction improperly singled out the complaining witness's testimony. See Veteto v. State, 8 S.W.3d 805, 816 (Tex. App.-Waco 2000, pet. ref'd), rev'd in part on other grounds, State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008); see also Hernandez v. State, No. 03-03-00758-CR, 2004 WL 2110396 (Tex. App.-Austin Sept. 23, 2004, no pet.) (not designated for publication). The legislature has provided for certain convictions based on uncorroborated evidence, but the Court of Criminal Appeals has concluded these statutory provisions were enacted for the guidance of trial and appellate courts in passing upon the sufficiency of the evidence. See Lemasters v. State, 164 Tex. Crim. 108, 297 S.W.2d 170, 171-72 (1956). The Legislature did not intend a jury to be instructed in accordance with the sufficiency standard; to do so is an improper comment on the weight of the evidence. See id. ("In other words, the trial court singled out the testimony of one witness in the case and instructed the jury to convict if they believed the testimony of that witness."). We conclude the trial court erred in instructing the jury concerning article 38.07's provisions. Jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). In this case, the jury's verdicts establish that the erroneous instructions did not cause harm to Wesbrooks's rights. The article 38.07 instruction was given to the jury twice: once with the charge on Count 1, alleging digital penetration of the complaining witness's sexual organ; once with the charge on Count 2, alleging oral contact with the complaining witness's sexual organ. The jury found Wesbrooks guilty on the second count but acquitted him on the first. If the erroneous instruction had influenced the jury to convict on one count, then that same instruction would have necessarily influenced the jury to convict on both counts. Wesbrooks stresses that the credibility of the complaining witness was paramount to the State's case, and we agree. But it appears the jury weighed the complaining witness's credibility very carefully and chose to believe part, but not all, of her testimony. We cannot say the article 38.07 instruction pushed them toward a verdict against Wesbrooks. Accordingly, we conclude Wesbrooks was not harmed by the erroneous instruction. We overrule Wesbrooks first issue.
Punishment Phase Evidence
In his second issue, Wesbrooks contends the trial court erroneously admitted irrelevant testimony in the punishment phase of the trial from one of the State's witnesses. The witness testified that Wesbrooks threatened her with a box cutter and repeatedly raped her. On cross, the trial court allowed Wesbrooks's lawyer to ask questions about the witness's convictions for prostitution because her credibility was at issue. Then, on re-direct, the prosecutor asked the witness about the lasting effects of the rape and the lasting effects of child sexual abuse. The witness testified that she knew about the latter because she had been abused herself. Wesbrooks's counsel objected when the witness was asked how long it took her to get over her childhood abuse. He stated:I'm going to object to that answer because the only thing I believe she can testify to is how the offense upon which she testified to, which was a sexual assault by [Wesbrooks], how that has affected her in her life. The answer that she's about to give was how some previous history of sexual abuse by somebody may have affected her outlook on life. So we object to the answer that she's about to give. It does not apply or at least she hasn't couched it in terms that it applies to this allegation of sexual assault by Mr. Wesbrooks.The court concluded the evidence was relevant and overruled the objection. Questioning of the witness continued for a short time. She testified that she had never really gotten over her abuse as a child and that after she was assaulted by Wesbrooks she was "grappling with it even more." A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Davis v. State, 68 S.W.3d 273, 282 (Tex. App.-Dallas 2002, pet. ref'd). The code of criminal procedure sets forth the standard:
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon 2006). This relevance standard is extremely broad. Here, the State elicited testimony that by raping the witness, Wesbrooks had compounded her earlier injury. The testimony tied her childhood abuse to how the rape affected her life. Thus, even under the terms of Wesbrooks's objection, this testimony was relevant because it showed "how [the sexual assault by Wesbrooks] has affected her in her life." We discern no abuse of discretion in allowing the testimony. We overrule Wesbrooks's second issue.