Jawaid Ahmed Parker v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued October 12, 2006

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-05-00586-CR

____________

 

JAWAID AHMED PARKER, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 996821

MEMORANDUM OPINION

A jury found appellant, Jawaid Ahmed Parker, guilty of the offense of sexual assault of a child // and assessed punishment at confinement for fifteen years and a fine of $10,000. In five points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and that the trial court erred in admitting extraneous offense evidence, in denying his motions for mistrial after the admission of extraneous offense evidence, and in admitting into evidence letters purportedly written by him to the complainant.

We affirm.

Factual and Procedural Background

The complainant, who was twenty years old at the time of trial, testified that in 1990, appellant, her uncle, moved from Pakistan to live with her family when she was six years old. Shortly after he moved in, she kissed appellant, who was then nineteen years old, on the lips and described it as a sexy movie kiss. She stated that appellant did not pull away or say anything. Appellant would also touch her caressingly on her back and shoulders over her clothes. When she was eight years old, the kissing became more intimate. When she was ten years old, appellant touched her under her clothes in places like my breast [and] my frontal vagina area. She explained that she did not tell her parents about her relationship with appellant because appellant was giving her gifts, money, and candy to keep quiet.

The complainant also testified that on February 14, 1998, when she was thirteen years old, appellant penetrated her sexual organ with his sexual organ. // They had sexual intercourse approximately once a week until she was fifteen years old. After she turned fifteen, she and appellant were having intercourse approximately three times a week.

The complainant further testified that when she was eighteen years old, appellant persuaded her to marry him by telling her that he was in danger of getting deported. They kept the marriage a secret from everyone. After appellant was arrested by the United States Immigration and Naturalization Service ( INS ), the complainant gave a sworn statement to the arresting officer regarding her relationship with appellant, but did not mention the sexual nature of her relationship with appellant when she was a child. Approximately six weeks later, the complainant returned to the INS office and made another sworn statement describing the sexual contact she had with appellant since she was six years old.

Freda Parker, the complainant s mother, testified that, sometime in 2004, she discovered that the complainant and appellant had married. At that time, the complainant had moved to Austin, but Mrs. Parker explained that she was not aware that the complainant was sharing a home in Austin with appellant. Once Mrs. Parker learned that her daughter had moved to Austin to be with appellant, she contacted multiple police agencies before finally contacting INS.

Marco Salterelli, an INS agent, testified that on May 28, 2004, he arrested appellant based on suspicion of marriage fraud. Salterelli explained that, upon questioning the complainant, he became aware that her case possibly involved child abuse and contacted the Harris County Sheriff s Department Child Abuse Unit.

Legal and Factual Sufficiency

In his fourth and fifth points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction of sexual assault because the complainant s testimony contained rampant inconsistencies and she had an obvious financial motive behind this case. He asserts that the complainant s credibility was impeached time and time again.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict 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 note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky, 158 S.W.3d at 510. The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In performing a factual sufficiency review, we are to give deference to the fact finder s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact finder s. Zuniga, 144 S.W.3d at 482.

 

Appellant argues that the State failed to prove its case beyond a reasonable doubt because no evidence other than the complainant s testimony was presented at trial. He notes that the State offered no evidence in the form of medical evidence, photographic evidence, DNA evidence, confessions, or any corroborating witnesses to substantiate each and every element of the offense. Appellant asserts that the complainant s testimony was impeached, including her testimony about the touching that occurred when she was ten years old and the number of times and the time of night that the complainant and appellant had sexual intercourse. Appellant also points to evidence suggesting that the complainant had not been traumatized and manipulated by appellant. Specifically, during cross-examination, the complainant conceded that she did not tell INS agents and other police officers the truth about her relationship with appellant. Moreover, the complainant testified that she had written a letter to an immigration judge detailing how appellant was an honorable man, and she continued to visit appellant after he was arrested. Finally, appellant asserts that the charges against him were financially motivated, noting that the complainant admitted she had attempted to sell appellant s belongings while he was incarcerated.

The testimony of a complainant, standing alone, is sufficient to support a conviction for sexual assault. Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App. San Antonio 1994, pet. ref d) (citing Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990)). Evidence is legally sufficient as long as it provides the requisite proof needed to satisfy the elements of the offense charged. Bousquet v. State, 47 S.W.3d 131, 137 (Tex. App. Houston [1st Dist.] 2001, pet. ref d).

Here, the complainant testified that appellant regularly had sexual intercourse with her when she was less than seventeen years old. She did admit that she initially did not tell the INS agent about the sexual relationship when appellant was taken into custody. She also admitted that, approximately six weeks later, she made a statement to INS that she had sex with appellant only five times. However, the complainant explained that, at the time she met with INS and made the original statement, she had not had enough time to reflect on the past and realize that appellant was still programming her to think that all was still right. It is also true that although the complainant had sworn in her statement that she and appellant usually had sexual intercourse at 8:00 p.m. and that the sexual intercourse never occurred while her parents were home, she testified that her parents were always home by 8:00 p.m. However, such inconsistencies are factors for the jury s considerations. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

In regard to her letter to the immigration judge, the complainant explained that appellant dictated the letter to her. She did continue to see appellant and take his phone calls when he was in jail, but she stopped abruptly once she came to the realization of what was good and what was wrong. The complainant also explained that she tried to sell appellant s belongings to pay the debts that she was left with as a consequence of his incarceration.

Viewing all the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Furthermore, viewing the evidence neutrally, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence is legally and factually sufficient to support appellant s conviction.

We overrule appellant s fourth and fifth points of error.

Extraneous Offense Evidence

In his first point of error, appellant asserts that the trial court erred in admitting testimony from the complainant regarding extraneous offenses committed by appellant, including indecency with a child, sexual assault of a child, and prohibited sexual contact in violation of the Texas Rules of Evidence 402, 403, 404(b) and the Fifth and Fourteenth Amendments to the United States Constitution as well as Article One Section Ten of the Texas Constitution.

 

Initially, we note that although appellant alleges violations of both the United States and Texas constitutions, he cites no legal authority to support his argument. When an appellant provides no argument or authority with respect to constitutional protections, those points of error are inadequately briefed. See Tex. R. App. P. 38.1(h); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). Because appellant has failed to adequately brief his argument that the complainant s testimony regarding extraneous offenses committed by appellant violated the United States and Texas constitutions, he has waived those issues for our review. See id.

Appellant argues that the evidence of his extraneous offenses was not relevant and constitutes inadmissible character evidence. See Tex. R. Evid. 402, 404(b). However, in a sexual assault case with a complainant under seventeen years of age, the Texas Code of Criminal Procedure provides,

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, 2 (Vernon Supp. 2005). Section two of article 38.37 supersedes the application of Texas Rules of Evidence 402 and 404. Howland v. State, 966 S.W.2d 98, 103 (Tex. App. Houston [1st Dist.] 1998), aff d on other grounds, 990 S.W.2d 274 (Tex. Crim. App. 1999).

In this case, the complainant testified that appellant fondled and kissed her in an escalating fashion when she was between the ages of six and ten, that he felt her under her clothes when she was ten, and that he had sexual intercourse with her when she was thirteen. Because the testimony was relevant to the state of mind of the complainant and appellant, as well as to the previous and subsequent relationship between the complainant and appellant, we hold that the trial court did not err in admitting the evidence. See Tex. Code Crim. Proc. Ann. art. 38.37, 2 (Vernon Supp. 2005); see, e.g., Hinojosa v. State, 995 S.W.2d 955, 957 (Tex. App. Houston [14th Dist.] 1999, no pet.) (stating evidence of 520 instances of molestation of child was relevant to show state of mind of both child and defendant and nature of their relationship).

Appellant also objected to the admission of these extraneous offenses under rule 403, which provides that [a]lthough 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 presumption is that relevant evidence is more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990). Appellate courts are to give trial courts wide latitude in making a rule 403 ruling. Id. at 390. An appellate court should not reverse a trial court s ruling on the admissibility of evidence that was within the zone of reasonable disagreement. Id. at 391.

Once a rule 403 objection as to prejudice versus probative value is invoked, a trial court has no discretion as to whether or not to engage in the balancing test required by that rule. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). However, the trial court is not required to sua sponte place into the record any findings it makes or conclusions it draws when engaging in this test. Id. Rather, the court is presumed to engage in the required balancing test once rule 403 is invoked. Id. The trial court s silence on the record does not imply a failure to conduct the balancing test. See id. at 195 96. If the record is silent, we may presume that the trial court conducted the balancing test and found the evidence more probative than prejudicial. Howland, 966 S.W.2d at 103.

Extraneous acts between a minor complainant and a defendant are typically more probative than prejudicial. Boutwell v. State, 719 S.W.2d 164, 176 (Tex. Crim. App. 1985). For example, in Hinojosa, a case regarding the sexual assault of a child, the court upheld the trial court s ruling that the complainant s testimony regarding the defendant s past sexual acts against her was more probative than prejudicial. 995 S.W.2d at 958; see also Ernst v. State, 971 S.W.2d 698, 701 (Tex. App. Austin 1998, no pet.) ( We hold that the probative value of the evidence of the extraneous acts [of sexual contact between the defendant and the child victim] outweighed their prejudicial effect and such evidence was admissible. ); Poole v. State, 974 S.W.2d 892, 897 98 (Tex. App. Austin 1998, pet. ref d) (holding child complainant s testimony regarding defendant s past sexual acts against her more probative than prejudicial).

Here, as in the cases above, the extraneous offense evidence involved previous sexual contacts between appellant and the complainant. Such evidence is probative of the state of mind of appellant and the complainant, and it illustrates the nature of the complainant and appellant s relationship. See Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2005). Moreover, evidence of past sexual contact between the complainant and appellant places the underlying allegations in the broader context of the relationship between the two and aids in explaining acts that would not otherwise appear plausible. Boutwell, 719 S.W.2d at 176. Accordingly, we hold that the trial court did not err in concluding that the probative value of the evidence of the extraneous offenses was not substantially outweighed by the danger of unfair prejudice and in admitting the complainant s testimony about them.

We overrule appellant s first point of error.

 

Mistrial

In his second point of error, appellant asserts that the trial court erred in denying his motions for mistrial made when the complainant testified about the extraneous offenses of aggravated assault with a deadly weapon and possession of a controlled substance by appellant after the State failed to provide notice of its intent to introduce such evidence. // On both occasions, the trial court sustained appellant s objections to the introduction of the evidence, instructed the jury to disregard the testimony, and denied appellant s motions for mistrial. Appellant contends that the trial court s instructions to disregard were insufficient under the circumstances.

When a trial court sustains an objection and instructs a jury to disregard testimony but denies a defendant s motion for mistrial, the issue is whether the trial court erred in denying the motion for mistrial. Sauceda v. State, 859 S.W.2d 469, 474 (Tex. App. Dallas 1993, pet. ref d). The denial of a motion for mistrial is reviewed under an abuse of discretion standard. See Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). A trial court does not abuse its discretion when its decision

 

is at least within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391.

A prompt instruction to disregard generally cures the error arising out of an improper question and answer. Herrero v. State, 124 S.W.3d 827, 836 (Tex. App. Houston [14th Dist.] 2003, no pet.). An instruction to disregard can cure testimony regarding an extraneous offense unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury s mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

First, appellant asserts that the trial court erred in allowing extraneous offense evidence regarding a prior assault by appellant on the complainant. After the complainant testified regarding an incident where appellant had threatened her with knives, appellant objected and the prosecutor stated that [he] didn t know anything about it until right now. The trial court sustained appellant s objection and then instructed the jury to disregard the testimony. Because the State asserted that it did not know about the alleged assault, the trial court could have reasonably concluded that the State s question was unintentional, and therefore not clearly calculated to inflame the minds of the jury. See Kemp, 846 S.W.2d at 308.

 

The complainant also testified that appellant had used narcotics. During the guilt phase of the trial, the following exchange took place from which appellant complains:

[State]: Was it Mr. did Agent Salterelli ever talk to you about anything other than those topics that he was interested in?

[The complainant]: No.

[State]: Did you ever hint to him that there was more going on --

[Defense Counsel]: Objection leading.

[Trial Court]: Overruled.

[State]: in this relationship?

[The complainant]: Yes, sir.

[State]: How so?

[The complainant]: That he has done drugs and he --

[Defense Counsel]: Objection.

[Trial Court]: Sustained.

[Defense Counsel]: It violates Rule 402, 403, 404.

[Trial Court]: Objection has been sustained.

[Defense Counsel]: Move to strike.

[Trial Court]: The jury will disregard the last statement of the witness.

[Defense Counsel]: I respectfully move for a mistrial.

[Trial Court]: Denied.

[State]: And I will be more specific Ms. Parker. What I m talking about on or about May 28, 2004, did you ever hint to Agent Salterelli that there was more to your physical relationship with the defendant?

[The complainant]: No, sir.

 

Again, the trial court, listening to the above exchange, could have concluded that the testimony was elicited unintentionally by the State and therefore given the totality of the circumstances, not calculated to inflame the minds of the jury. See Kemp, 846 S.W.2d at 308. Here, it is apparent that the State was actually attempting to elicit whether the complainant had told Salterelli about her past sexual relationship with appellant. Accordingly, we hold that the trial court did not err in denying appellant s motions for mistrial.

We overrule appellant s second point of error.

Improperly Admitted Evidence

In his third point of error, appellant argues that the trial court erred in admitting three letters purportedly written by him to the complainant, because they were not relevant, contained inadmissible hearsay, not properly authenticated, and their probative value was substantially outweighed by the danger of unfair prejudice.

Regarding the first letter, State s Exhibit 1, appellant s sole objection to admissibility was that the letter had not been properly authenticated. See Tex. R. Evid. 901. Appellant did not object to the letter on the basis of relevance, unfair prejudice, or hearsay. Appellant has failed to preserve for our review any complaint regarding rules 402 and 403 and hearsay because he made no timely request, objection, or motion based on these grounds. See Tex. R. App. P. 33.1.

Thus, the sole issue regarding the first letter before us on appeal is whether the letter was properly authenticated because it was not signed. A document must be authenticated before it can be admitted into evidence. Tex. R. Evid. 901. A handwritten document can be authenticated by a nonexpert opinion as to the genuineness of the handwriting. Tex. R. Evid. 901(b)(2). Appellant relies on a Missouri appellate court opinion stating that a signature alone is not enough to support authentication of a document. Missouri v. Davis, 849 S.W.2d 34, 41 (Mo. Ct. App. 1993). Appellant concludes that according to this proposition a document without a signature has an even lesser chance of being authenticated than does one that has a signature.

 

This argument is without merit. In Davis, the witness testified regarding the document in question and did not identify the handwriting on the document. Id. The only evidence of authentication presented were the signatures on the documents. Id. Texas Rule of Evidence 901(b)(2) expressly accepts a nonexpert witness s testimony based upon familiarity not acquired for purposes of the litigation identifying the handwriting as sufficient to authenticate the writing as that of the person who the witness identifies as having authored the letter. Tex. R. Evid. 901(b)(2). Here, the complainant testified that she recognized the handwriting in the letter as that of appellant. She further explained that she recognized appellant s handwriting because [h]e wrote me a lot of letters. Moreover, we note that, during the punishment phase, appellant admitted that he wrote the letters. Accordingly, we hold that the trial court did not err in admitting the first letter, State s Exhibit 1, into evidence.

Regarding the other two letters, State s Exhibits 3 and 4, the following exchange occurred:

[State]: Judge I tender State s 3 and 4 to defense attorney, and I ask that they be admitted.

[Defense Counsel]: I object to admission of State s 3 and 4 in that they violate rules 403, 404(b) of the Texas rules of evidence, and they re hearsay.

[Trial Court]: Approach the bench, please . . .

Let s see, 404 objection is overruled. Just in between this and this?

[Defense Counsel]: Yes.

[State]: Well, I think a mention of the mother in one of the letters, Your Honor.

[Trial Court]: Okay.

[Defense Counsel]: No objection.

[State]: No.

[Trial Court]: State s 3 and 4 are admitted.

[Defense Counsel]: I have no objection.

(emphasis added). Where an appellant creates the impression that he is abandoning his objection, his initial objection is not sufficient to preserve error. Cole v. State, 194 S.W.3d 538, 545 (Tex. App. Houston [1st Dist.] 2006, pet. ref d) (citing Purtell v. State, 761 S.W.2d 360, 366 (Tex. Crim. App. 1988)). Here, after initially objecting to the admission of State s Exhibits 3 and 4, appellant withdrew his objections. Appellant went beyond merely abandoning his objection by expressly stating that he had no objection to the admission of State s Exhibits 3 and 4. Accordingly, appellant failed to preserve any complaint for appeal regarding the admission of State s Exhibits 3 and 4 into evidence. See id.

We overrule appellant s third point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists Justices Nuchia, Jennings, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).