Jack Andrew Warren, Jr. v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-022-CR

JACK ANDREW WARREN, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 28887

O P I N I O N

Jack Andrew Warren, Jr. was charged in a five-count indictment with aggravated sexual assault and indecency with a child, alleged to have been committed against four different children. He was convicted and sentenced in four counts to life in prison. On the fifth count, the jury assessed fifty years in prison. He asserts four points of error. We will affirm the judgment of the trial court.

In a pretrial hearing, Warren presented his motion for an independent medical examination in which he requested that each of the four victims named in the indictment submit to a physical examination performed by a reputable medical doctor. The State agreed to and did provide Warren with all of the medical records of two of the injured parties who had been seen by physicians prior to the hearing. It was further agreed that the third victim would not be required to undergo a medical examination because that count charged "touching" rather than "penetration." The trial court denied Warren's motion regarding the fourth injured party. Warren now contends in point one that the court erred in denying his motion because he was charged with aggravated sexual assault by penetration in count four of the indictment and he should have had an opportunity to review the results of a court-ordered medical examination of the fourth victim, S.C.

The indictment alleged that Warren "intentionally and knowingly caused the penetration of the female sexual organ of [S.C.], a child younger than fourteen years of age who was not the spouse of said Defendant by penetrating the female sexual organ of [S.C.] with the male sexual organ of said Defendant," i.e., sexual intercourse. See Tex. Penal Code Ann. 21.01 (Vernon 1989). Warren contends that, in dealing with assaults against children, it is essential to determine in some objective manner whether the allegations are truthful and to have some physical evidence to determine whether their stories are believable.

Warren has cited no case law in support of his allegations. He urges that the examinations were necessary because he believed the victims were "forced by bribery, coercion, undue influence, and/or threats to make the allegations" proper areas of questioning on cross-examination, an opportunity which he was given. In addition, the trial court could not compel the victim to submit to a physical examination at the defendant's request. See State Ex Rel. Wade v. Stephens, 724 S.W.2d 141, 143-44 (Tex. App. Dallas 1987, no pet.).

Moreover, the allegation constituting the fourth count of the indictment alleged that Warren had sexually assaulted S.C. approximately six years prior to trial. When S.C. testified at trial, she stated that she was married and had two children. Any evidence which might have been gained by a physical examination at or near the time of the trial would have had little probative value. Point one is overruled.

Warren complains in point two that the court erred in allowing the outcry testimony of Lisa Pilgrim as admissible hearsay because the requirements of article 38.072 of the Code of Criminal Procedure were not met, in that Warren was previously provided with a statement different from that given by the witness at trial. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 1993). Thus, although Warren attempts to argue that the notice requirement of article 38.072 was not met, he doesn't dispute that the State complied with article 38.072 but rather focuses upon the sufficiency of the notice. See id.

On the first day of trial, the State called Lisa Pilgrim as its first witness. Pilgrim was the first person, eighteen years of age or older, whom J.S. told what had happened to her. See id. at 2(a)(2). The court initially heard Pilgrim's outcry testimony outside the presence of the jury to determine whether the Code of Criminal Procedure requirements had been met, i.e., to determine whether the statement was reliable based on the time, content, and circumstances of the statement. See id.

The State's written summary of what would be Pilgrim's testimony was provided to Warren approximately six weeks prior to trial. That summary read as follows:

That, in summary, the witness will testify that the child told the witness of the offense, committed by the defendant on or about the 18th day of November, 1988, and the witness will testify that the child told the witness that the crime was committed under the following circumstances: Lisa Pilgrim is [J.S.'s], aka [J.R.S.], teacher at Taylor Elementary School in Burleson, Texas. In the fall of 1991, [J.S.] had written a paper for part of her classwork about memories in which [J.S.] had stated that her uncle had molested her and now he was bothering her younger sister. Upon reading this paper, [J.S.'s] teacher, Lisa Pilgrim, asked [J.S.], Do you know what I'm concerned about? [J.S.] said yes. Lisa asked [J.S.], are the things written in this paper true? [J.S.] nodded yes. Lisa asked [J.S.] had he (the uncle mentioned in the paper, Jack Andrew Warren Jr.) kissed you? [J.S.] nodded yes. Lisa asked [J.S.], touched you? [J.S.] nodded yes. Lisa asked [J.S.], has he touched you in places where you think he shouldn't have? [J.S.] said yes. Lisa asked has he touched you through your clothes or under clothes? [J.S.] said yes. Lisa asked has he touched you above the waist? [J.S.] said yes. Lisa asked below the waist? [J.S.] said yes.

At the hearing, Pilgrim's testimony paralleled the notice filed by the State in all but one respect. Pilgrim stated, outside the jury's presence, that J.S. had written in her paper that her "uncle had molested her sister and now he was bothering her . . . ." Warren cross-examined Pilgrim on this variance and a discussion followed. Warren ultimately objected to the statement on the grounds that, as it was served upon him, it was untrue. The court held that the State had complied with article 38.072 and admitted the outcry testimony.

Article 38.072 of the Code of Criminal Procedure provides that, in a prosecution for aggravated sexual assault committed against a child twelve years of age or younger, a statement made by the child victim describing the offense may be admissible under certain circumstances. Id. The statement must have been made by the child-victim and the witness must have been the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. Id. If these requirements are met, the statement is not inadmissible as hearsay if:

(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Tex. Code Crim. Proc. Ann. art. 38.072 2(b) (Vernon Supp. 1993).

The purpose of article 38.072 is to prevent any surprise to the defendant from the introduction of outcry testimony. Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App. Fort Worth 1992, pet. ref'd). The statute requires only that the state give the defendant adequate notice of the content and scope of the statement. Id. at 737; see also Norris v. State, 788 S.W.2d 65, 68 (Tex. App. Dallas 1990, pet. ref'd).

Warren received the summary of the testimony and had the opportunity to cross-examine the witness outside the presence of the jury. Lisa Pilgrim's testimony differed from the State's notice only with regard to whether J.S., or her younger sister, was the first to be abused by Warren. The State's notice sufficed to apprise Warren of the content and scope of the outcry testimony, thus avoiding the possibility of surprise and substantially complying with the requirements of article 38.072. See Tex. Code Crim. Proc. Ann. art. 38.072. Point two is overruled.

In point three, Warren claims that the court erred in denying his motion for new trial because the evidence was insufficient to support a conviction on aggravated sexual assault in count five of the indictment. Warren was charged in count five with aggravated sexual assault committed against L.S., a child younger than fourteen years of age. Following Warren's conviction on each of the five counts, he filed a motion for new trial alleging that the evidence was insufficient to support the jury's finding that Warren penetrated L.S's vagina with his finger.

In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the verdict, and if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must sustain the conviction. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we act as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We have only the discretion to determine if any rational trier of fact, considering the evidence admitted at trial, could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We do not make our own myopic determination from reading the cold record. See Moreno, 755 S.W.2d at 867. We do not disregard, realign, or weigh evidence. See id. The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App San Antonio 1990, pet. ref'd). Moreover, in determining the sufficiency of the evidence to sustain a conviction, we must consider all the evidence admitted before the trier of fact at the guilt-innocence stage of the trial. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990).

The law is well-settled that contradictory testimony does not render the evidence insufficient. Mercado v. State, 695 S.W.2d 25, 29 (Tex. App. Corpus Christi 1985), aff'd, 718 S.W.2d 291 (1986). Later contradictory evidence does not destroy the probative value of earlier testimony. Id.

A person commits the offense of aggravated sexual assault when the person intentionally or knowingly causes the penetration of the female sexual organ of a child younger than fourteen years of age. See Tex. Penal Code Ann. art. 22.021 (Vernon 1989). The Court of Criminal Appeals in Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992), discussed the term "penetration" in the context of the aggravated sexual assault statute; that is, "to penetrate" may mean to "enter into." The court stated that words not specially defined by the legislature are to be understood as ordinary usage allows, and that jurors may freely interpret statutory language to have any meaning acceptable in common parlance. Id. at 409. The court concluded that, as long as the contact "could reasonably be regarded by ordinary English speakers as more intrusive than with [the] outer vaginal lips," the action falls within the meaning of "penetration." Id.

L.S. testified at trial that she was nine years old and in the third grade. She told the jury that Warren had come to live, one or two years before, in the same house where she, her mother, and her sister lived. According to L.S., she and her twelve-year-old sister shared a room, in which they took turns sleeping on the top bunk bed. One night, as she slept in the lower bunk, Warren entered their room and kneeled on the floor beside her bed. She testified that he "put his head down on my pillow and he stuck his hand in my private and twirled it around." She then explained that it was his finger that he had put in her private. L.S. said that she told her sister what had happened, and her sister then told their mother. She stated that she had told her mother that she may have been dreaming because "I didn't know if Jack was gonna hurt me again or not."

L.S.'s mother, Connie Sullivan, testified concerning L.S.'s outcry about the offense. She testified that her older daughter had told her that Warren was "messing with" L.S. Mrs. Sullivan questioned L.S. about the incident, and L.S. told her that she woke up and that Jack had his hands in her panties. Mrs. Sullivan stated that, when she asked L.S. whether she was sure about this, L.S. said that she was sure but that she didn't know if she'd been dreaming or not.

Dr. Charles McPherson, the pediatrician who examined L.S. after the June 14, 1991, incident and who had examined many children for the possibility of sexual abuse, stated that in some instances, when digital penetration is involved, the examining physician might find a laceration or break in the child's hymen following a deep penetration of the child's vagina. However, he stated that a normal physical examination does not necessarily mean that the child has not been abused. Dr. McPherson explained that the distance from the opening of the vagina to the hymen may be some distance, and that a person could penetrate the opening of the vagina without causing harm to the hymen. He concluded that, although his examination of L.S. revealed nothing out of the ordinary, that result did not necessarily indicate that her vagina had not been penetrated. He testified that, in taking L.S.'s medical history on December 10, 1991, she stated that there had been digital penetration and fondling by her mother's ex-boyfriend but she denied penile contact.

The jury was instructed as follows:

Our law provides that a person commits an offense of Sexual Assault [i]f the person, intentionally or knowingly, causes the penetration of the female sexual organ of a child by any means.

The word "child" as used herein, means a person younger than seventeen (17) years of age who is not the spouse of the actor.

Our law provides that a person commits the offense of Aggravated Sexual Assault if the actor commits the offense of Sexual Assault as defined above and the victim is younger than fourteen (14) years of age.

Now if you find from the evidence beyond a reasonable doubt that on or about the 14th day of June, 1991, in Johnson County, Texas, the Defendant, Jack Andrew Warren, Jr., did intentionally or knowingly cause the penetration of the female sexual organ of [L.S.], a child younger than 14 years of age and not the spouse of said Defendant, by penetration the female sexual organ of [L.S.] with the finger of said Defendant, then you will find the Defendant guilty as charged in COUNT FIVE of the indictment.

A rational jury could find that L.S.'s description of Warren's actions i.e., that he put his finger in her "private" and "twirled it around" described conduct more intrusive than contact with her outer vaginal lips. Further, Dr. McPherson clarified that a child's vagina may be digitally penetrated by the action of a finger filling the space between the outer lips of the vagina and the hymen. Such an action might not produce any evidence of penetration absent a deeper intrusion into the vagina.

Viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of aggravated sexual assault beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19; Matson, 819 S.W.2d at 843. Point three is overruled.

In point four, Warren claims that the court erred in denying his motion for new trial because one member of the jury was allegedly coerced into a finding of guilt in exchange for a lighter sentence regarding count five of the indictment. He contends that one juror changed her vote from "not guilty" to "guilty" in exchange for a lighter sentence. The jury assessed life for each of the first four counts of the indictment and fifty years on the fifth count. Warren's complaint only addresses the verdict reached on count five.

Warren attached an affidavit from one juror, Jean Ann Kim, to his motion for new trial. The affidavit states that another juror, Mrs. Owens, was persuaded to change her vote from "not guilty" to "guilty" based upon the representation that a lighter sentence would be assessed.

The State, in responding to Warren's motion, attached an affidavit from Mrs. Owens. Juror Owens stated that, contrary to juror Kim's opinion, she did not change her vote in exchange for a lighter sentence. Mrs. Owens stated that she "voted to find the defendant guilty on each count of the indictment based solely on the evidence presented at trial." She further stated that any allegation to the contrary was false.

The Rules of Appellate Procedure provide that a new trial is warranted "where the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial." Tex. R. App. P. 30(b)(8). What constitutes such a degree of misconduct as to deny the accused a fair and impartial trial must be determined upon the facts of each case. Heredia v. State, 528 S.W.2d 847, 853 (Tex. Crim. App. 1975).

The granting or denying of a motion for new trial rests within the discretion of the trial court, and the court's decision should not be reversed on appeal absent an abuse of discretion. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985); Kiser v. State, 788 S.W.2d 909, 914 (Tex. App. Dallas 1990, pet. ref'd). The same rule applies when the trial court denies the motion for new trial without an evidentiary hearing. McIntire, 698 S.W.2d at 660; Kiser, 788 S.W.2d at 915. Questions concerning possible jury misconduct raised in a motion for new trial must be determined by the court, and in the event of conflicting evidence, as the contradictory affidavits in this case, the court does not abuse its discretion in denying the motion. Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990).

Although it is clear from the record that the jury experienced some difficulty reaching a verdict on the allegation contained in count five of the indictment, the court could have concluded that juror Owens changed her vote based solely on the evidence presented at trial. No abuse of discretion by the court has been shown. Point four is overruled.

We affirm the conviction.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 19, 1994

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