Opinion
06-21-00144-CR
07-29-2022
JOSEPH MITCHEL WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
Date Submitted: July 14, 2022
On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 49,313-B
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Joseph Mitchel Wright was indicted for continuous sexual abuse of his girlfriend's daughter, E.N., who was younger than fourteen years old. After a bench trial, the trial court found him guilty and sentenced him to forty-five years' imprisonment. On appeal, Wright complains (1) that the trial court erred under Article 38.23 of the Texas Code of Criminal Procedure when it admitted and considered the testimony and report of a nurse who examined E.N. and (2) that there was insufficient evidence that the sexual abuse occurred over a period that was thirty or more days. Because we find that (1) Wright did not preserve his complaint as to the admission of the nurse's testimony and report, (2) Wright does not have standing to complain of the consideration of the nurse's testimony and report, and (3) sufficient evidence supports the trial court's finding that the sexual abuse occurred over a period of thirty or more days, we will affirm the trial court's judgment.
See Tex. Penal Code Ann. § 21.02(b) (Supp.).
See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Supp.).
(1) Wright Did Not Preserve His Complaint as to the Admission of the Nurse's Testimony
Danielle Sanchez, a registered nurse and sexual assault nurse examiner (SANE), performed a sexual assault examination on E.N. on April 3, 2019. When Sanchez began to testify regarding her examination of E.N., Wright made a hearsay objection, which the trial court overruled. When the State offered Sanchez's report of the examination, Wright objected to the report as hearsay, which objection was also overruled. After the conclusion of Sanchez's direct testimony, Wright elicited testimony from Sanchez that E.N.'s great-grandmother signed the consent form to allow the examination. At the time of closing argument, Wright argued that Sanchez's testimony and the report should be stricken from the record under Article 38.23 of the Texas Code of Criminal Procedure because the examination had been improperly consented to by the great-grandmother in violation of the Texas Family Code. See Tex. Code Crim. Proc. Ann. art. 38.23(a) ("No evidence obtained by an officer or other person in violation of any . . . laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case."); Tex. Fam. Code Ann. § 32.001 (listing persons authorized to consent to medical treatment of child when person otherwise having right to consent cannot be contacted).
On appeal, Wright complains that the trial court erred in admitting Sanchez's testimony and the report because the examination was obtained in violation of Texas law since a great-grandparent is not among those persons authorized to consent to medical treatment for a child in Section 32.001 of the Texas Family Code. Therefore, Wright argues, this evidence was inadmissible under Article 38.23 of the Texas Code of Criminal Procedure.
"Preservation of error is a systemic requirement on appeal." Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). We should not address the merits of an issue if it is not preserved. Id. at 532-33. "To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context." Lee v. State, No. 06-15-00004-CR, 2015 WL 5120243, at *1 (Tex. App -Texarkana Sept. 1, 2015, no pet.) (mem. op., not designated for publication) (citing Tex.R.App.P. 33.1(a)(1)). "To be timely, '[t]he objection must be made at the earliest possible opportunity.'" Davison v. State, 602 S.W.3d 625, 648 (Tex. App -Texarkana 2020, pet. ref d) (quoting Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993)). Further, a "point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).
The only objection asserted when Sanchez began to testify about her examination of E.N., and when the State offered the report into evidence, was that the testimony and report were hearsay. Even when Sanchez testified on cross-examination that E.N.'s great-grandmother consented to the examination, Wright did not assert an objection under Article 38.23. As a result, Wright's complaint on appeal does not comport with his objection at trial. Further, even if Wright's final argument that the evidence should be stricken under Article 38.23 is construed as an objection to the admission of this evidence, such objection was untimely. Consequently, Wright has failed to preserve this issue for our review. See Wilson, 71 S.W.3d at 349; Davison, 602 S.W.3d at 648.
In addition, the Texas Court of Criminal Appeals has held that a defendant may challenge the admissibility of evidence under Article 38.23 "in either of two ways: (1) he may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress evidence and have it heard and ruled upon before trial." Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)); see Tex. R. Evid. 103(c). Wright failed to assert either of these.
(2) Wright Does Not Have Standing to Complain of the Consideration of the Nurse's Testimony and Report
Wright complains that the trial court erred in considering Sanchez's testimony and report. Again arguing that E.N.'s examination was performed in violation of Section 32.001 of the Texas Family Code, Wright reasons that, under Article 38.23, the fact-finder must disregard the evidence. The State contends that Wright waived this complaint by failing to make a timely objection to Sanchez's testimony and the report. We disagree.
Article 38.23 provides:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Proc. Ann. art. 38.23(a). "The first sentence [of Article 38.23(a)] speaks to the admissibility of evidence," Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000), while "the second sentence of Article 38.23[(a)] speaks to jury instruction," Holmes, 248 S.W.3d at 199 (citing Pierce, 32 S.W.3d at 251). Further, "[a] defendant's decision whether to seek the judge's ruling on admissibility does not affect his right to have the jury instructed on a particular issue." Id. at 200 (quoting Hromadka v. State, No. 1329-00, 2003 WL 1845067, at *1 (Tex. Crim. App. Apr. 9, 2003) (not designated for publication)). Consequently, "an objection to the admissibility of evidence under the first sentence of Article 38.23 [(a)] is not a prerequisite to the right to a jury instruction regarding a disputed factual issue under the second sentence of Article 38.23[(a)]." Id. at 202.
When legal evidence raises an issue under Article 38.23(a), the second sentence requires the trial court to instruct the jury to determine, based on the evidence admitted, whether there has been a violation of the Constitution or laws of either Texas or the United States and, if so, to disregard the evidence. Assuming, without deciding, that such sentence would also require the trial court acting as fact-finder to disregard such evidence, we find that Wright did not waive his complaint that the trial court should not have considered Sanchez's testimony and her report by failing to properly object to the admission of this evidence. Id.
On its face, the second sentence of Article 38.23(a) appears to be applicable only in jury trials. However, because it requires the jury, as fact-finder, to disregard any evidence that was obtained in violation of the Federal or Texas Constitutions or laws of either Texas or the United States, at least arguably this principle would also apply to the trial court acting as fact-finder. In a case in which the evidence was admitted without a motion to suppress and without a timely Article 38.23 objection, and evidence is later developed that implicates Article 38.23, the trial court may arguably be required to disregard the evidence.
However, as the State also argues, Article 38.23(a) may not be invoked for a violation of Section 32.001 of the Texas Family Code; and, as a result, Wright does not have standing to invoke Article 38.23 to bar consideration of Sanchez's testimony and her report. In Article 38.23, the Legislature codified the Texas exclusionary rule. Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010). It is both based on, and broader than, the federal exclusionary rule. Id. "The underlying purpose of both the federal exclusionary rule and Article 38.23 is the same: to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement." Id. at 458-59 (citing Miles v. State, 241 S.W.3d 28, 36 n.33 (Tex. Crim. App. 2007)). As the Texas Court of Criminal Appeals has explained,
Although the plain language of article 38.23(a) would suggest that evidence obtained in violation of any law must be suppressed, . . . article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule. The primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution. Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule or to the prevention of the illegal procurement of evidence of crime.Id. at 459 (footnotes omitted) (citations omitted).
Nothing in Section 32.001 of the Texas Family Code indicates that its purpose is related to protecting a criminal suspect's privacy, property, or liberty rights. Rather, Section 32.001, which identifies persons authorized to consent to the medical treatment of a child when the person otherwise having the right to consent cannot be contacted, protects the privacy and liberty rights of the child to not be subjected to medical examination and treatment without informed consent. As a result, a violation of Section 32.001 does not constitute a violation of the law within the meaning of Article 38.23(a). See, e.g., Pannell v. State, 666 S.W.2d 96, 98 (Tex. Crim. App. 1984) (violations of Code of Professional Conduct are not laws contemplated by Article 38.23); Roy v. State, 608 S.W.2d 645, 651-52 (Tex. Crim. App. 1980) (violation of assumed name statute, which concerns commercial liability, not violation of Article 38.23).
Further, even if a violation of Section 32.001 constituted a violation of law under Article 38.23(a), Wright does not have standing to complain of the violation. The Texas Court of Criminal Appeals has long refused to "interpret the sweeping language of article 38.23(a) to confer automatic third party standing on all persons accused of crimes, such that they may complain about the receipt of evidence which was obtained by violation of the rights of others." Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim. App. 1993) (op. on reh'g). Rather, a criminal defendant has no standing under Article 38.23 of the Texas Code of Criminal Procedure to challenge evidence obtained by a violation of the rights of a third party. See Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008); Fuller, 829 S.W.2d at 202; Grant v. State, 531 S.W.3d 898, 900 (Tex. App-Houston [14th Dist] 2017, pet. ref d).
In this case, if Section 32.001 of the Texas Family Code was violated in the treatment and diagnosis of E.N., then only E.N.'s privacy and liberty rights, and perhaps the liberty rights of her mother who was authorized to consent to the medical treatment of her daughter, would have been violated. Consequently, Wright does not have standing to complain of such violation. Fuller, 829 S.W.3d at 202.
Because a violation of Section 32.001 does not constitute a violation of the law within the meaning of Article 38.23(a), and Wright does not have standing, even so, to invoke Article 38.23 to bar consideration of Sanchez's testimony and her report, we overrule this issue.
(3) There Was Legally Sufficient Evidence That the Sexual Abuse Occurred Over a Period of Thirty or More Days
Wright also asserts that there was insufficient evidence to support his conviction. He argues that the evidence was insufficient to show that two or more of the alleged acts of sexual abuse occurred over a period of thirty or more days. We disagree.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the [fact-finder] 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Id. at 297 (quoting Hooper, 214 S.W.3d at 13). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13)). "Further, 'we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.'" Id. (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App -Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018)).
The fact-finder, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] 'believe all of [the] witnesses' testimony, portions of it, or none of it.'" Williamson, 589 S.W.3d at 297 (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). "We give 'almost complete deference to a [fact-finder]'s decision when that decision is based on an evaluation of credibility.'" Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).
Under the statute and the indictment, the State was required to establish beyond a reasonable doubt that, during a period of time anterior to the presentment of the indictment, Wright, (1) who was seventeen years of age or older, (2) committed two or more acts of sexual abuse against E.N., a child younger than fourteen years of age, (3) during a period that was thirty days or more in duration. See Tex. Penal Code Ann. § 21.02(b)(1), (2)(a). The predicate offenses alleged against Wright were that he committed (1) aggravated sexual assault of a child when he intentionally or knowingly caused the penetration of E.N. 's sexual organ with his sexual organ, (2) aggravated sexual assault of a child when he intentionally or knowingly caused the penetration of E.N. 's sexual organ with his tongue, and (3) indecency with a child when he engaged in sexual contact with E.N. by touching her genitals., Wright challenges only whether there was legally sufficient evidence to show that there were two instances of sexual abuse that occurred thirty or more days apart.
The indictment alleged that the continuous sexual abuse occurred "from on or about" August 1, 2018, through March 21, 2019. However, "the 'on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). There is no limitation period for the offense of continuous sexual abuse of a young child. Tex. Code Crim. Proc. Ann. art. 12.01(1)(D) (Supp.).
Although the State alleged aggravated sexual assault of E.N. by another means, the trial court found that there was insufficient evidence of that alleged aggravated sexual assault and did not consider the allegations.
E.N.'s mother testified that she had lived with E.N. and her son, T.N., at different addresses in Hallsville most of E.N.'s life and that she and her children moved to a house off Baxley in 2018. At the Baxley house, she lived with her children, Wright, and their friend, Josh. They moved there in December 2018 when E.N. was turning eleven years old. She also testified that Wright was her boyfriend for about nine and one-half years, beginning when E.N. was two years old.
E.N. was born on December 12, 2007.
In late March 2019, E.N. told her mother that Wright had been touching her. Mother testified that E.N. told her that Wright touched her sometimes when he was drunk, but Mother was not sure she believed it. She told Wright about E.N.'s accusations, and Wright said that he did not know why E.N. would say that. Mother also testified that, in the months before the accusation, E.N.'s attitude toward Wright had changed.
E.N.'s fifth-grade teacher testified that, in March 2019, one of her students told her that E.N. was crying and told them some things that made them uncomfortable. When she asked E.N. in private if there was something she wanted to talk about, E.N. told her that, when her mother's boyfriend had been drinking, he would come into her bedroom and touch her inappropriately and have sex with her.
E.N.'s school counselor testified that, after her outcry was reported to her, she also talked with E.N. on March 22, 2019. She testified that E.N. told her of an incident in which her mother's boyfriend tried to slip his finger under her underwear while holding her and of an incident in which he made her put his penis in her mouth. She contacted Child Protective Services (CPS) to report the outcry, and CPS took over.
Debra Stiles, a detective with the Longview Police Department, interviewed Wright on April 15, 2019. She testified that Wright acknowledged that he had a drinking problem, but denied the accusations made by E.N. Although Stiles scheduled a follow-up interview, Wright rescheduled three times but failed to come to the interview. After obtaining an arrest warrant, Stiles learned that Wright had moved to Oregon, where he was arrested. Stiles testified on cross-examination that she found out during her investigation that E.N. had been caught with a boy on one or possibly two occasions. She also testified that E.N.'s mother was very hesitant to believe the accusations and that neither Josh nor T.N. were aware that anything was going on.
E.N.'s great-grandmother confirmed that E.N. was caught in a closet with her cousin one time and that he had supposedly touched her breasts and she had supposedly touched his penis.
Sanchez testified that, when she interviewed E.N. during her SANE examination, E.N. said that the assaults had happened on multiple dates and that she identified only Wright as the perpetrator. E.N. also told Sanchez (1) that her vagina had been penetrated by his penis, his finger, and a vibrator, (2) that her anus had been penetrated by his penis and finger, (3) that he had put his mouth on her genitals and anus, and (4) that she had put her mouth on his penis. E.N. also told her that her pain scale at the time of the assaults was a nine and that the location of the pain was abdominal cramping. Sanchez testified that, in her experience, abdominal cramping was very common for victims who have been vaginally penetrated. Sanchez also testified that E.N. did not have any acute physical trauma but that there was a deep cleft at the bottom of her hymen, which was indicative of an injury that had healed. Based on her training, Sanchez opined that the location of the injury indicated that it had resulted from a forced penetration.
E.N., who was thirteen years old at the time of trial, testified of several instances in which Wright sexually abused her. She testified that, when she was six years old, she lived in a small trailer with her mother, T.N., and Wright. The first instance occurred when she was six years old and Wright touched her genital area while she was wearing clothes.
She testified that, when her mother, T.N., and she moved to the house on Baxley with Josh and his girlfriend, Wright also lived there. While they lived on Baxley, her mother worked at Wal-Mart, and Josh and his girlfriend worked at Cheddar's, but Wright did not work. She also testified that, at the Baxley house, Wright began putting a vibrator against her genital area, both with and without her clothes on. E.N. testified that she remembered more than one time when she was lying down on the couch in the living room and Wright would either touch or lick her genital area and genitals. The time that he licked her on the couch was before she began having her period.
E.N. also testified that, after she began having her period at age ten, Wright began having sexual intercourse with her by putting his penis inside her genital area, and it was painful. She testified that that happened three or four times and that he had intercourse with her once every other week.
E.N. also testified regarding other instances of sexual abuse by Wright that were not pled in the indictment.
The uncorroborated testimony of a child victim is sufficient to support a conviction for continuous sexual abuse of a child. Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); see Bays v. State, No. 06-10-00114-CR, 2011 WL 6091757, at *3 (Tex. App.-Texarkana Dec. 7, 2011, pet. ref'd) (mem. op., not designated for publication). Viewing the evidence in the light most favorable to the trial court's judgment, E.N. testified about one instance when Wright touched her genital area that occurred when she was six years old and at least one other instance when Wright touched her genitals that occurred when she was ten years old. That testimony alone showed two instances of sexual abuse, as pled in the indictment, that occurred thirty or more days apart, which a rational jury could have found beyond a reasonable doubt.
"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).
The indictment charged indecency with a child by Wright's sexual contact with E.N. by touching her genitals.
Even if we were to discount E.N.'s testimony of sexual abuse when she was six years old, the evidence was still sufficient. E.N. testified that Wright touched her genital area when she was ten years old at least one time, that he had licked her genitals at least once when she was ten years old before she began her period, and that he had penetrated her genitals with his penis four times after she began her period, and that it occurred once every other week. The testimony about E.N.'s outcry to Sanchez, her teacher, and her school counselor were generally consistent with E.N.'s trial testimony. Based on that testimony, any rational jury could have found beyond a reasonable doubt that Wright committed at least one act of indecency with a child and four acts of aggravated sexual assault of a child, as alleged in the indictment, over a period of at least seven weeks.
Consequently, we find that legally sufficient evidence supports the trial court's finding that the sexual abuse of E.N. by Wright occurred over a period of thirty or more days. We overrule this issue.
For the reasons stated, we affirm the trial court's judgment.