Thomas Edward Parker v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-91-102-CR

THOMAS EDWARD PARKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 29-492

O P I N I O N

A jury found Thomas Parker guilty of aggravated sexual assault and aggravated kidnapping. See Tex. Penal Code Ann. 22.021, 20.04 (Vernon 1989). It assessed punishment at twenty and fifteen years, respectively.

Parker's first point contains six separate complaints. The first two complaints assert that the court erred both when it charged him with two separate non-property offenses in one indictment and when it failed to quash the indictment. However, he neither objected to the indictment nor filed a motion to quash it. He waived his complaints about the indictment. See Phillips v. State, 597 S.W.2d 929, 935 (Tex. Crim. App. [Panel Op.] 1980). Article 1.14 of the Code of Criminal Procedure is not applicable because the case was tried prior to its adoption. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1992).

In his third and fourth complaints, Parker contends the court erred when it received two verdicts of guilty on two separate offenses in one trial and when it sentenced him on two separate offenses in the same trial. He did not raise either of these complaints at trial; therefore, they are not preserved for appellate review. See Tex. R. App. P. 52(a).

Parker argues in his fifth complaint that the court erred by charging the jury on two separate non-property offenses. The State could prosecute him for both crimes in the same trial because the sexual assault and the kidnapping were part of the same "criminal episode." See Tex. Penal Code Ann. 3.02(a) (Vernon 1974) & 3.01 (Vernon Supp. 1992). To preserve the complaint, he should have objected to the joinder and consolidation of the offenses or made a motion to sever them under section 3.04(a). See id. 3.04(a) (Vernon 1974). We find no such objection or motion to sever. He has also waived this complaint. See Tex. R. App. P. 52(a).

Parker's final complaint under his first point is that the court erred when it failed to instruct the jury that the law requires two specific intents for the offense of aggravated sexual assault, namely that there must be the specific intent to "intentionally and knowingly cause the penetration of the female sexual organ . . . and also that he must have also had a specific intent to kill or do serious bodily injury." (Original emphasis). He apparently relies on this objection to preserve his complaint for review:

THE COURT: . . . What's your next objection[?]

[DEFENSE COUNSEL]: Comes to the verdict. I'd point out to the Court that sexual offenses, rape and aggravated rape, have been removed from the sexual offense statute in the Penal Code on to the assault offenses in the Penal Code, which is 22 something. Now, in this case here, the specific intent and culpability required has to do with the specific intent to cause death, serious bodily injury, or permanent something. The same quality of threat of death or serious bodily injury imminently to be inflicted. And in this case here, on the kidnapping statute, I don't think it shows when the kidnapping began, unless we go back to Big Jim's [a tavern], and there can be no consent. The kidnapping statute has been amended since that time, too. One kidnapping statute now can go down to a misdemeanor. But in the death or serious bodily injury, whatnot, with the fear to be imminently inflicted, takes it all the way up, as it's charged here, to a felony one. Now, in the court's instruction, it said, and it's done the same thing on kidnapping, both requires an identical culpable mental state, to inflict death, serious bodily injury. One is burden for kidnapping her. With this burden in mind, ordinarily it would be a situation of aggravation of using a knife or weapon, something to kill her with. In this case, it would be with intent to commit some other offense.

Now, when the court used "and" in [its] Charge to the jury, I contend the Court should instruct: "If you have found the Defendant not guilty in the foregoing paragraph, then you're not to consider this offense," because the same identical culpable mental state is required in both offenses. When the Court uses "and," that means after that, they just found beyond a reasonable doubt something did not happen to the mental state involved.

THE COURT: Overruled. Anything further?

To preserve a complaint for review, the complaining party needs to state "the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." Tex. R. App. P. 52(a). Considering the length and content of the objection, we cannot say that Parker gave the trial court fair notice of the "specific grounds" of the objection. We find that he failed to preserve the complaint for review. See id.

In the alternative, section 22.021 of the Penal Code provides:

(a) A person commits an offense:

(1) if the person:

(A) intentionally or knowingly:

[commits a sexual assault]; or

(B) intentionally or knowingly:

[sexually assaults a child]; and

(2) if:

(A) the person:

(i) causes serious bodily injury . . . ;

(ii) by acts or words places the victim in fear . . . ;

(iii) by acts or words . . . threatens to cause the death . . . , or kidnapping of any person; or

(iv) uses or exhibits a deadly weapon . . . .

Tex. Penal Code Ann. 22.021(a) (emphasis added).

The element of culpability, i.e., intentionally or knowingly, applies to subparagraphs (a)(1)(A) and (B). Subparagraph (2) does not have the separate culpability requirement that the person intentionally or knowingly cause serious bodily injury, put the victim in fear, threaten to kidnap, or use a weapon. Therefore, even if the complaint were preserved, the court properly refused to require a specific intent to do bodily harm. We overrule point one.

In his second point, Parker contends that the court erred when it admitted his confession because it was not "freely, voluntarily, knowingly, or intelligently made even though [he] had been advised of his rights." At the pretrial hearing, the arresting officer testified that he gave Parker his Miranda warnings before taking the statement. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Parker then confessed to the rape and signed a transcript of the confession that once again recited his rights and which he once again voluntarily waived. Complying with Jackson v. Denno, the court conducted a pretrial hearing to determine the confession's admissibility. See Jackson v. Denno, 378 U.S. 368, 377, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). At the hearing, the court heard evidence from the investigating officer and two witnesses for the defendant. It then denied Parker's motion to suppress the oral confession and filed findings of fact to support its ruling that the confession was voluntarily given.

At a Jackson v. Denno hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Burks v. State, 583 S.W.2d 389, 393 (Tex. Crim. App.), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1136 (1979). Furthermore, the court's findings will not be disturbed when there is evidence to support them, unless there is a showing of an abuse of discretion. Barton v. State, 605 S.W.2d 605, 607 (Tex. Crim. App. [Panel Op.] 1980); Taylor v. State, 630 S.W.2d 824, 826 (Tex. App. Houston [1st Dist.] 1982, no pet.). Because the evidence supports the trial court's finding that the confession was freely and voluntarily given, we defer to its determination here. See Burks, 583 S.W.2d at 393. We overrule point two.

In his third point, Parker contends that the court erred in charging the jury that it could convict him in ways that were not pled in the indictment. The indictment charged Parker and T.R. Franklin, Jr. with committing aggravated sexual assault and aggravated kidnapping by acting together.

After the grand jury indicted them, Franklin severed his case and was convicted in a separate trial. Parker did not object to the charge at trial; therefore, he must not only show error but "egregious harm" i.e., that the error denied him a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (on rehearing). The first step in analysis, then, is to determine if there is error in the charge.

Section 7.01(a) of the Penal Code provides that "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both." Tex. Penal Code Ann. 7.01(a) (Vernon 1974). Section 7.02(a)(2) provides: "A person is criminally responsible for an offense committed by the conduct of another if: . . . (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; . . . . Id. 7.02(a)(2). The evidence shows that Parker aided Franklin and Ricky L. Evans in committing the rape by helping to restrain and beat the victim while the others raped her. Therefore, the evidence establishes that he is a party to the crime. See id. 7.01(a). The evidence also proved that Parker raped her himself.

Section 7.01(b) provides: "Each party to an offense may be charged with the commission of the offense." Id. 7.01(b). Therefore, the court correctly charged the jury that it could find Parker guilty of the crimes as either a primary actor or as a party. When the accused acts with the intent to assist in the commission of the offense, he must share equally in the criminal responsibility for the crime. See Scott v. State, 754 S.W.2d 268, 275 (Tex. App. Corpus Christi 1988, pet. ref'd). Through his conduct and intent, Parker was criminally responsible for the offenses.

Even if one could argue that there was error in the charge, "any error in charging on the law of the parties is harmless if the evidence clearly supports appellant's guilt as a primary actor." See Brown v. State, 716 S.W.2d 939, 945-46 (Tex. Crim. App. 1986). He assaulted the victim as well. Thus, Parker was not only was a party to the crimes, but also a principal actor as well. We find there is no error in the charge but, even it there were, it was harmless. We overrule point three.

Parker's fourth point, like his first, is a combination of separate complaints. In the first two, he argues that the court erred both when it denied him the opportunity to question the victim about being raped on a previous occasion and when it excluded evidence from the victim's husband who allegedly would have testified about her past sexual behavior.

An appellate court cannot reach the question of whether evidence was improperly excluded unless the complaint has been preserved. James v. State, 546 S.W.2d 306, 311 (Tex. Crim. App. 1977); Criff v. State, 664 S.W.2d 732, 734 (Tex. App. Waco 1983, pet. ref'd). Thus, the initial inquiry is whether Parker properly preserved the complaint. Rule 52 of the Rules of Appellate Procedure sets out the methods for preserving a complaint arising from the exclusion of evidence. See Tex. R. App. P. 52. This is done by either an offer of proof or a bill of exception. Id. at 52(b), (c). The record reflects that Parker did not make an offer of proof or a bill of exception concerning the excluded evidence. Thus, he has also waived these complaints relating to the excluded evidence. See id.

Under his fourth point, Parker also contends that the court erred when it refused to allow him to prove jury misconduct. He timely made a motion for a new trial and had a hearing on it on April 29, 1991. Although he subpoenaed the jurors for the hearing, he had no affidavit of a juror, or anyone else in a position to know the facts, attached to his motion.

A motion for new trial alleging jury misconduct must be supported by an affidavit of a juror, or someone else in a position to know the facts, to be sufficient as a pleading. Mason v. State, 459 S.W.2d 855, 858 (Tex. Crim. App. 1970). Because Parker's motion was insufficient as a pleading, the court properly denied it. See Procella v. State, 395 S.W.2d 637, 639 (Tex. Crim. App. 1965), cert. denied, 384 U.S. 934, 86 S. Ct. 1450, L.Ed.2d (1966). Also at the hearing, the court quashed the subpoenas. Absent a proper pleading alleging jury misconduct, a court can properly quash subpoenas for jurors. Mason, 459 S.W.2d at 858.

Three days later, on May 2, Parker filed an amended motion for a new trial, and his attorney submitted his own affidavit relating what a juror had purportedly told him about the jury's deliberations. Parker's amended motion was not timely filed under Rule 31(a)(2) because one must amend a motion for new trial before it is overruled. See Tex. R. App. P. 31(a)(2).

An additional complaint is that the court erred when it limited Parker's time for voir dire. He made a motion requesting an additional hour and a half for voir dire, which the court partially granted by allowing him an additional fifteen minutes. Evidently, he wanted an hour and fifteen minutes more than the time allotted to him. The trial court may impose reasonable restrictions on voir dire examination. Bodde v. State, 568 S.W.2d 344, 350 (Tex. Crim. App. 1978). The standard of review is abuse of discretion. Whitaker v. State, 653 S.W.2d 781 (Tex. Crim. App. 1983). Here, Parker had an hour and a half to conduct his voir dire, which was fifteen minutes more than the State was allowed.

To demonstrate harm in situations when a court limits a defendant's time for voir dire, the appellant must show three things: First, he must show his voir dire was not an attempt to prolong the examination of the prospective jurors; second, he must have set out in a bill of exceptions the questions he would have asked the jurors and these questions must not be improper, irrelevant, immaterial, or unnecessarily repetitious; and third, he must show he was not permitted to examine veniremen who eventually served on the jury. Ratliff v. State, 690 S.W.2d 597, 599-600 (Tex. Crim. App. 1985). Here, Parker did not include his questions in a bill of exceptions, and he actually questioned all members of the venire who later served on the jury. Consequently, he failed to preserve his complaint. See id.

Under the fourth point, Parker also complains that the court erred when it limited his time on closing argument. He asked the court to allow him an hour and a half for his closing argument. The court allowed each side only forty-five minutes. The time limit on final argument is within the discretion of the trial court. Hernandez v. State, 506 S.W.2d 884, 886 (Tex. Crim. App. 1974). We do not find the court abused its discretion. See id.

All points of error being overruled, we affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas.

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 22, 1992

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