Stephen Clark Webb v. The State of Texas Appeal from 337th District Court of Harris County (opinion )

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Opinion issued April 2, 2015. In The Court of Appeals For The First District of Texas ———————————— NO. 01-14-00174-CR ——————————— STEPHEN CLARK WEBB, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1389676 OPINION A jury convicted Stephen Webb of indecency with a child.1 In eight issues, Webb contends that the trial court erred by admitting inadmissible evidence and denying his motion for a mistrial. We affirm. 1 TEX. PENAL CODE ANN. § 21.11 (West 2011). Background In 1996, Webb dated (and later married) the mother of the complainant, Jane, 2 and moved into Jane’s home. Jane was ten years old at the time. After several years, Webb divorced Jane’s mother and moved out of the house. As an adult, Jane disclosed to her boyfriend, her family, and police that Webb had sexually assaulted her when she was a child. Webb was arrested for aggravated sexual assault of a child. 3 Before trial, the trial court granted a motion in limine preventing the State from soliciting evidence that Webb had given anyone other than Jane illegal drugs. At trial, the State called Jane, who recounted that when she was a child Webb had physically assaulted her, performed inappropriate massages on her, made her mow the lawn topless, shown her pornography, given her drugs and alcohol, and performed various other indecent acts. The State also asked Jane if Webb ever gave his younger son any illegal drugs—a question that violated the motion in limine. Webb objected before Jane could answer; the court sustained the objection and instructed the jury to disregard the question. Webb moved for a mistrial; the court denied his motion. The State also called Jane’s boyfriend, who recounted that Jane, now an adult, would have terrible nightmares. During the nightmares, she would cry out 2 3 We refer to the complainant by this pseudonym to protect her identity. TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014). 2 Webb’s name. He described how she eventually told him about the abuse. Webb objected to this testimony as inadmissible hearsay; the court overruled the objection. The State’s other witnesses included the investigating police officer and a child-abuse expert. The State then rested. During his case-in-chief, Webb called Jane’s mother to testify about Webb’s behavior during their marriage and to discredit portions of Jane’s story. On crossexamination, the State asked Jane’s mother whether Webb was in another relationship when he began a relationship with her. The State also asked about Webb’s relationships with his two sons from an earlier marriage. Webb objected to the relevance of this evidence; the court overruled his objections. Webb called several other witnesses and then rested. The jury convicted him of a lesser-included offense, indecency with a child. Punishment was assessed at ten years’ incarceration, suspended for ten years’ community supervision. Webb timely appealed. Evidentiary Objections In his first five issues, Webb contends that the trial court improperly admitted hearsay testimony and irrelevant evidence. 3 A. Standard of review We review a trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone of reasonable disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at 22. To preserve the issue of erroneously admitted evidence, a party must make a timely and specific objection and receive a ruling from the trial court. TEX. R. APP. P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The party must object every time the evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). B. Sleep talking In his first issue, Webb contends that the trial court erred by admitting testimony from Jane’s boyfriend that during violent nightmares she would cry out, “No, don’t, [Webb]. Don’t. [Webb], no, no.” Webb objected to these statements as hearsay; the trial court overruled this objection. First, we must determine whether somniloquy falls under the rule against hearsay. Hearsay is any out-of-court statement “offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d). In Texas, the rule covers both 4 explicit assertions and “any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.” TEX. R. EVID. 801(e). The statements Jane made while asleep do not explicitly assert anything but do imply that, in her dream, she was in conflict with Webb, or at least a man sharing Webb’s name. Accordingly, we conclude that, under the circumstances of this case, these statements were implied hearsay. See Drone v. State, 906 S.W.2d 608, 611–12 (Tex. App.—Austin 1995, pet. ref’d); Mosley v. State, 141 S.W.3d 816, 830 (Tex. App.—Texarkana 2004, pet. ref’d). Second, we must determine whether the statements qualify for one of the exceptions to the rule against hearsay. In this case, the State successfully argued to the trial court that the sleep statements were excited utterances. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” TEX. R. EVID. 803(2). The statements in question were made during or immediately after Jane’s nightmare. Jane was highly agitated. That many years had passed since the alleged abuse does not affect our analysis; “under the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident.” McCarty v. State, 257 S.W.3d 238, 240 (Tex. Crim. App. 2008). These sleep statements meet the requirements for an excited utterance. 5 Webb cites numerous courts outside of Texas that have held that sleep statements are far too unreliable to be admissible. Notably, many of these cases analyzed the issue either in the context of a hearsay exception for “trustworthy” statements 4 or by considering objections to both hearsay and relevance. See Com. v. Almeida, 746 N.E.2d 139, 141 (Mass. 2001) (“Admitting hearsay evidence of statements made while a person is sleeping, so-called ‘sleep talk,’ would run counter to one of the central principles governing the admissibility of evidence, namely, that the proffered material is reliable.”); In re Interest of Jamie P., 670 N.W.2d 814, 824 (Neb. Ct. App. 2003) (statements of sleeping child were not product of conscious thought and therefore not excited utterances and not sufficiently trustworthy to be admitted under guarantee-of-trustworthiness hearsay exception); Godfrey v. State, 365 S.E.2d 93, 93 (Ga. 1988) (sleep statements do not qualify for hearsay exception for certain statements with “sufficient indicia of reliability”). Other courts have refused to make such a broad, bright-line rule. See Gardiner v. State, 444 S.E.2d 300, 304 (Ga. 1994) (weight and credibility of sleep talk is province of jury); State v. Posten, 302 N.W.2d 638, 641 (Minn. 1981) (sleep talk may be reliable under some circumstances but not others). In some 4 In Texas, the excited-utterance exception does not require a special guarantee of trustworthiness. Compare TEX. R. EVID. 803(2) with TEX. R. EVID. 803(5)–(8), (24) and TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b)(2) (West Supp. 2014). Of course, a statement may meet the excited-utterance requirements yet be inadmissible under other rules or statutes. 6 circumstances, a sleeping declarant may be uniquely reliable. Deborah Rosenthal, Voices from Darkness: The Evidentiary Admissibility of Sleep Talk, 30 U.S.F.L. REV. 509, 517 (1996) (“Clearly, somniloquy resulting from psychic conflict or environmental or post-traumatic stress could be useful as evidence of events causing conflict and stress, such as murder or sexual abuse.”). A review of Texas court opinions has produced only one case on point: Mayfield v. State, 25 S.W.2d 833, 834 (Tex. Crim. App. 1930). In that case, the victim either jumped or was thrown out of an automobile. She was found unconscious and remained in that state until she expired. The Texas Court of Criminal Appeals ruled that several statements she made while unconscious were inadmissible hearsay under a common-law rule that when a “declaration is offered, it must appear that the declarant was mentally conscious.” Id. We conclude that Mayfield does not apply to this case because the commonlaw rule that it relied upon has been supplanted by the Texas Rules of Evidence. The statements in question fall within the express requirements for the excitedutterance exception. The excited-utterance exception articulated in the Rules is “based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information.” Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). A sleeping declarant would not be capable of such reflection. 7 Whether sleep talk is nevertheless unreliable is ultimately a question of (1) whether, under Rule 402, such evidence has any probative value and, if yes, (2) whether, under Rule 403, the probative value is substantially outweighed by the unfairly prejudicial or confusing effect of sleep statements. See Almeida, 746 N.E.2d at 142 (“That [declarant] was having some form of dream about the defendant, the contents of which are entirely unknown, sheds no light on whether she had actually been sexually assaulted by him. Furthermore, the prejudicial nature of such evidence far outweighs its minimal probative value.”); Godfrey, 365 S.E.2d at 94 (1988) (“The child’s outcry in his sleep is no more reliable than the dream itself.”). But we do not address the reliability of sleep talk because Webb objected under Rule 802, which prohibits hearsay, not under Rule 402 or Rule 403. We overrule Webb’s first issue. C. Explanation of nightmare In his second issue, Webb contends that the trial court erroneously admitted hearsay statements that Jane made to her boyfriend about the nightmares shortly after awakening from one. The trial court admitted the statements as excited utterances. Before asking the witness to disclose what Jane said, the State laid the following predicate for the excited-utterance exception: Q: And when you woke [Jane] up, was she calm? 8 A: The exact opposite of calm. Q: Describe how she was. A: She was in full tears, still pushing me away . . . . Over Webb’s objection, the prosecutor asked what Jane said “while she was still upset and crying.” The witness responded: A: She—she said that—I kept asking what had he done to you, and she was crying at this point. I was—I was crying as well, but she said that he had—that he had—he had done things to her and he had touched her where he shouldn’t have, and we both started crying and— Q: Now, when you say “he,” who was she talking about? A: [Webb]. Jane made statements about the abuse she had just relived in her nightmare. Given that she had just woken up from her nightmare and was “upset,” “crying,” “in full tears,” and “the exact opposite of calm,” the trial court did not abuse its discretion by concluding that she was under the stress of this event when making these statements. See McCarty, 257 S.W.3d at 240 (statements made when restartled may be excited utterances). Webb argues that a nightmare cannot be a startling event for purposes of the excited-utterance exception. He distinguishes this case from Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005). There, the declarant was beaten unconscious; he spent four days either unconscious or heavily medicated, and thus did not have 9 the opportunity to reflect before discussing the assault. Apolinar, 155 S.W.3d at 189–90. The court held that, when he was finally able to speak about the assault, he was still startled by it, and thus his statements were excited utterances. Id. Webb distinguishes this case from Apolinar because the startling event here is the nightmare, not the trauma. We acknowledge this distinction, but it does not affect our analysis because Apolinar does not abolish the general principle that the startling event “need not necessarily be the crime itself.” Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.— Fort Worth 1995, pet ref’d); accord McCarty, 257 S.W.3d at 240. For example, in Hunt a television program rekindled a child’s fear that she would become pregnant from sexual abuse suffered three months prior. Hunt, 904 S.W.2d at 816. And in McCarty, a benevolent tickle deeply upset a child because her abuser also tickled her “but went much further.” McCarty, 257 S.W.3d at 240. In both cases, the trial court did not err by admitting the ensuing statements as excited utterances. Id.; Hunt, 904 S.W.2d at 816. Webb argues that cases like McCarty are distinguishable because the startling event “had nothing to do with who was tickling [the declarant].” But this is a distinction without a difference. In both Hunt and McCarty, the declarant was startled by an event that reminded her of prior trauma. This case presents the same fact pattern. 10 Finally, Webb complains that the record does not specify whether Jane described events from her real-world memories or from her dream. This may (or may not) be a relevance issue, but Webb only objected to hearsay. Accordingly, we do not address this argument. See TEX. R. APP. P. 33.1. We overrule Webb’s second issue. D. Defendant’s relationships In his third through fifth issues, Webb contends that the trial court erroneously admitted evidence that Webb was living with another woman while dating Jane’s mother and that Webb had poor relationships with his two sons. Webb argues that this evidence was not relevant. This evidence was solicited several times during the trial. At times, Webb failed to object. Webb failed to object to the following testimony from Jane’s mother concerning the start of her relationship with Webb: Q: At the time you met [Webb], was he married? A: No. Q: Was he in a relationship? A: Yes. Q: And who was he in a relationship with? A: Her name was . . . . He also did not object to the following question and answer from the same witness: 11 Q: And [while you were dating Webb] he was living part of the time out in California with [Webb’s significant other]? A: Yes. He also failed to timely object to the relevance of the following testimony from Jane’s mother about Webb’s relationships with his sons: Q: Now, at the time that you married [Webb], you indicated he had two children . . . correct? A: Yes. Q: Did he have any type of . . . relationship[s] with his sons? How would you describe his relationship[s] with his sons? A: It seemed okay. To successfully preserve the erroneous admittance of evidence for appellate review, a party must timely object every time the evidence is offered. Ethington, 819 S.W.2d at 858. Assuming without deciding that the admission of this evidence was in error, Webb did not preserve the error because he did not consistently object when the State solicited this testimony. We overrule Webb’s third through fifth issues. Motion for Mistrial In his sixth issue, Webb contends that the trial court erred by denying his motion for a mistrial. 12 A. Standard of review We review a trial court’s denial of a motion for mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A prompt instruction from the trial judge is usually enough to cure the error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined by the particular facts of the case. Ladd, 3 S.W.3d at 567. When assessing action on a motion for mistrial, “[d]eterminations of historical fact and assessment of witness credibility and believability are left almost entirely to the discretion of the trial judge, and where there is conflicting evidence there is no abuse of discretion if the motion is overruled.” Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it was within the zone of reasonable disagreement. Id. 13 B. Instruction to disregard Before trial, the trial court granted a motion in limine prohibiting the State from asking if Webb had distributed illegal drugs to any person other than Jane. The court told the State that it should approach the bench before asking any question precluded by the motion. The State violated the motion in limine when it asked Jane: “Do you know if [Webb] gave [his younger son] drugs?” The State did not approach the bench before asking the question. Immediately, Webb objected. At the ensuing bench conference, the State apologized. The trial court then issued the following instruction to the jury: “You are instructed to disregard that question and not consider it for any reason whatsoever.” Webb then timely moved for mistrial, which the trial court denied. To determine if the trial court abused its discretion by denying a motion for mistrial, we use the three-factor test announced in Mosley v. State, 983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998). We look to three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Archie v. State, 340 S.W.3d 734, 740 (Tex. Crim. App. 2011) (applying Mosley factors to denial of motion for mistrial). 14 For the first Mosley factor, we examine “the severity of the misconduct, or in other words, the magnitude of the prejudicial effect of the prosecutor’s [misconduct].” Archie, 340 S.W.3d at 740. A prosecutor’s attempt to circumvent a motion in limine is serious misconduct. See Scruggs v. State, 782 S.W.2d 499, 502 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). But the magnitude of the prejudicial effect of this action was somewhat mitigated by the particular circumstances of this case. First, the prosecutor promptly moved on and did not revisit the issue. Second, other evidence linked Webb to illegal drugs. Jane testified that Webb had given her drugs and alcohol. And Webb asked Jane’s mother on direct examination about various CPS and FBI investigations into “rampant drug abuse and pornography in the house.” For the second Mosley factor, “the reviewing court considers the character of the measures adopted to cure the misconduct.” Archie, 340 S.W.3d at 741. In this case, the trial court promptly instructed the jury to disregard the question. An instruction to disregard is presumed effective unless the particular facts imply otherwise. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). For the third Mosley factor, “the reviewing court looks to the certainty of conviction absent the misconduct.” Archie, 340 S.W.3d at 741. The State’s evidence included Jane’s testimony recounting her abuse, her boyfriend’s testimony about her nightmares and outcry, a police officer’s testimony about his 15 investigation of the case, and expert-witness testimony explaining how the facts of this case match traditional patterns of abuse. The defense focused on Webb and Jane’s family, who disagreed with various parts of Jane’s story. Thus, this case came down to a credibility determination: did the jury believe Jane was telling the truth? The State’s improper question did not significantly affect the believability of Jane’s account because: (1) the question was posed to Jane, not to a corroborating witness; (2) Jane had already testified that Webb gave her illegal drugs; (3) the state and federal investigations provided additional evidence of drugs in the home, and (4) drug use formed only a small part of Jane’s story. Given our analysis of the Mosley factors, we conclude that the State’s misconduct did not warrant the extraordinary remedy of a mistrial. Accordingly, we overrule Webb’s sixth point of error. Cumulative Effect In his seventh and eighth issues, Webb contends that the cumulative harm of the alleged errors warrants reversal of his conviction. But we have found no reversible error in the trial court’s evidentiary rulings or in its decision to deny Webb’s motion for mistrial. Accordingly, we overrule Webb’s seventh and eighth issues.5 5 The State argues that cumulative harm from multiple errors is not a proper issue for appeal. Because there is no cumulative harm, we do not address this argument. 16 Conclusion We affirm the judgment of the trial court. Harvey Brown Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Publish. TEX. R. APP. P. 47.2(b). 17

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