William Floyd Lane v. The State of Texas--Appeal from 115th District Court of Upshur County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-05-00245-CR
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WILLIAM FLOYD LANE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 13,892
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

A jury convicted William Floyd Lane of aggravated sexual assault of a child and found that he had previously been convicted of a felony offense. The jury assessed punishment at ninety-nine years' confinement and a $10,000.00 fine. Lane's appeal urges error in the following respects: the trial court erred in failing to submit a lesser-included charge to the jury, the State failed to disclose exculpatory evidence, and the trial court failed to grant a mistrial. (1) Finding no reversible error, we affirm the judgment of the trial court.

Tabitha Thorn attempted to provide a home for her father, Lane, with whom she had little association for most of her life. Around Christmas 2004, Tabitha allowed her father to move into a travel trailer located at her home where she lived with her three children. About once a week, Lane would provide babysitting services for Tabitha's children. One evening, in the first part of February 2005, Tabitha attended a basketball game and allowed Lane to sit with her eight-year-old child, S.M. When she returned home, she discovered the child was inside the travel trailer with Lane and the door was locked. After she knocked, Lane came to the door wearing only his pants. She found S.M. in the sleeping area of the small trailer attempting to put on her shirt as Tabitha came into the room. S.M. later told her mother and others she had been sexually assaulted by Lane.

 

Failure to Submit Lesser-Included Charge

The indictment charged that Lane did "cause the penetration of the female sexual organ of [S.M.], a child who was then younger than 14 years of age . . . by the defendant's tongue."

Before the jury charge was submitted, Lane requested that a lesser-included charge of indecency with a child be submitted to the jury, which the trial court denied. An instruction on a lesser offense is required only if both of the following conditions are fulfilled: (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists in the record that would permit a jury rationally to find that, if guilty, the defendant is guilty only of the lesser-included offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). In applying the two-pronged test, the trial court should make a determination as to whether the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, not the greater offense. Id.

The State acknowledges that indecency with a child may be a lesser-included offense of aggravated sexual assault, but alleges that there is no evidence Lane is guilty only of the lesser offense. The Texas Court of Criminal Appeals has held there are two ways in which the evidence may indicate a defendant is guilty only of the lesser offense. First, there may be evidence which refutes or negates other evidence establishing the greater offense. Second, a defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to different interpretations. Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim. App. 1997) .

If a defendant either presents evidence he or she committed no offense or presents no evidence and there is no evidence otherwise showing the defendant is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). We must examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000). With these principles in mind, we examine the facts of this case to determine whether the lesser included instruction should have been given.

The elements necessary to prove aggravated sexual assault of a child are:

a person . . . intentionally or knowingly . . . caused the penetration of the sexual organ of a child by any means . . . who was younger than 14 years of age.

 

Tex. Penal Code Ann. 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2006).

To prove indecency with a child, it is not necessary to prove penetration of the sexual organ. "Sexual contact" with a child under seventeen years who is not the actor's spouse is sufficient. Sexual contact may be any touching of the anus, breast, or any part of the genitals of a child. Tex. Penal Code Ann. 21.11 (Vernon 2003).

S.M. testified that, after Lane moved onto the property, he "was giving me lessons for after when I got married." She explained that the "lessons," which occurred four or five times, included

both S.M. and Lane taking off their clothes and getting into bed. On the videotape, she identified her private as her "pee-pee." She stated Lane placed his mouth "on my private part and inside." "He went inside me, inside my private part." She further stated he placed his tongue in her private part and, "I felt it."

This evidence is sufficient to prove Lane penetrated the sexual organ of the child. See In re A.B., 162 S.W.3d 598, 600 (Tex. App.--El Paso 2005, no pet.). Proof of the slightest penetration is sufficient. Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972). There is no evidence to refute or negate this proof, and it is not subject to an interpretation that penetration did not occur. Therefore, there is no evidence in the record that, if Lane was guilty, he was only guilty of indecency with a child, not aggravated sexual assault. Consequently, no instruction was required or proper on the lesser-included offense of indecency with a child. See Hendrix v. State, 150 S.W.3d 839, 851 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd).

Brady Violation Allegation

One of the State's witnesses was Freeman Pierce. Pierce was a family friend who S.M. considered a grandfather. After S.M. reported the sexual assault, Pierce allowed Lane to stay with him so he would not be near the child. Pierce also contacted the authorities concerning the sexual assault report. After Pierce told Lane he was being investigated for this occurrence, Lane left town. Apparently, Lane left some money in Pierce's possession and after a couple of weeks called Pierce and requested him to send the money. During the course of that conversation, Pierce told Lane the money was needed to provide counseling for S.M. According to Pierce, Lane then stated S.M. needed counseling because "she had some sexual hangups, she enjoyed wearing nothing but his T-shirts." Counsel objected to Pierce's statement from Lane on the basis that he had not been provided notice of the statement as he was entitled under Brady. (2)

The Due Process Clause of the Fourteenth Amendment to the United States Constitution is violated when a prosecutor fails to disclose evidence favorable to the accused that creates a probability sufficient to undermine confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). In order to establish a due-process violation under Brady, a defendant must show: 1) evidence was suppressed after a request by the defense; 2) the suppressed evidence was favorable to the defense; and 3) the suppressed evidence was material to either guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794 (1972); Thomas, 841 S.W.2d at 404; Taylor v. State, 93 S.W.3d 487, 499 (Tex. App.--Texarkana 2002, pet. ref'd). Favorable evidence includes both exculpatory and impeachment evidence. Thomas, 841 S.W.2d at 404.

Before trial, Lane had requested all exculpatory evidence in the State's possession. The State argues that the statement of Lane to Pierce was not favorable or exculpatory evidence for Lane. Inculpatory evidence is not required to be revealed by the State. Butler v. State, 736 S.W.2d 668, 670 (Tex. Crim. App. 1987). Lane argues the evidence is favorable to him because the statement could be interpreted as an expression of concern about the attitude and behavior of a precocious child. The statement of Lane is evidence that he has drawn certain inferences of a sexual nature from conduct of an eight-year-old child (wearing t-shirts) that generally is considered innocent child behavior. It would be unusual for the State to attempt to introduce exculpatory evidence; in seeking to introduce this statement, the State considered that the statement would assist in the State's prosecution of Lane. We do not find that Lane's statement was exculpatory and find no Brady violation.

Mistrial Motion

During cross-examination of S.M., she testified she had not known her grandfather, Lane, very long. She was then asked:

Q. When was the first time, do you remember, if you met your grandpa?

A. We used to go visit him in prison.

After an objection, the trial court instructed the jury to disregard that response. Thereafter, counsel moved for a mistrial, which was denied. The complaint on appeal is that the answer was nonresponsive and so prejudicial that it was impossible for an instruction to disregard to cure the problem.

First, this question was asked by the defense attorney while cross-examining the child. The question asked of the witness was when was the first time she remembered meeting her grandfather. We find the answer--"We used to go visit him in prison" is not altogether unresponsive to the question asked by Lane's counsel.

Second, an instruction to disregard normally cures error, except in extreme cases where the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987); Mathews v. State, 40 S.W.3d 179, 183 (Tex. App.--Texarkana 2001, pet. ref'd) (witness stated in response to prosecution's question that defendant was "in the penitentiary on two different occasions"; found could be cured by instruction). Even testimony referring to extraneous offenses allegedly committed by a defendant may be rendered harmless by the trial court's instruction to the jury to disregard the statement or comment. Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. [Panel Op.] 1979); see, e.g., Williams v. State, 643 S.W.2d 136, 138 (Tex. Crim. App. [Panel Op.] 1982); Richardson v. State, 624 S.W.2d 912, 913 (Tex. Crim. App. [Panel Op.] 1981). Improper evidence will seldom call for a mistrial, because in most cases any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required only when the improper evidence or comment is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id.; State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

Here, the trial court promptly instructed the jury to disregard the evidence. Again, we note the State had no participation in eliciting the comment, but it was in response to defense cross-examination. The statement was not repeated or referred to at any other time during the proceedings. We do not believe this comment constitutes an extreme case calculated to inflame the jury or is of such character as to be impossible to withdraw from the jury's consideration. The point of error is overruled.

The judgment of the trial court is reformed to correctly reflect the range of punishment as fifteen to ninety-nine years. In all other respects, the judgment of the trial court is affirmed.

 

Jack Carter

Justice

 

Date Submitted: January 24, 2007

Date Decided: March 14, 2007

 

Do Not Publish

1. Lane's final point on appeal is that the trial court's judgment states the range of punishment as five to ninety-nine years' confinement when it should be fifteen to ninety-nine years since Lane's punishment was enhanced by one prior felony. The State agrees the judgment should be reformed to reflect the proper range of punishment.

2. Brady v. Maryland, 373 U.S. 83 (1963).