Mallory Everett Hill v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-329-CR

MALLORY EVERETT HILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-57-C

O P I N I O N

A jury found Mallory Hill guilty of aggravated sexual assault and assessed punishment of thirty-five years' incarceration. See Tex. Penal Code Ann. 22.021 (Vernon 1994). He raises twelve points of error, complaining that the court improperly denied his requests for a mistrial and improperly admitted evidence during the punishment hearing. He also argues that the statute defining "prior criminal record" for punishment purposes is constitutionally infirm. We will affirm.

M.H., Hill's twelve-year-old daughter, testified that Hill "stuck his penis in [her] vagina [for] [a]bout five to ten minutes" the week before Christmas 1993. Lois Hill, Hill's wife and M.H.'s mother, testified that, one night around December 17, 1993, when she and Hill were having sex, Hill asked her, "Would you please go get [M.H.] and ask her if she would come and join us. I would like to fuck her." Lois also testified that, "[w]hile [she] was sucking [Hill's] dick, he asked [her], Wouldn't it be so nice if [M.H.] could do this also?'" // After this testimony, Hill's attorney requested a bench conference. In the court's chambers, he objected to Lois' reference to oral sex under Rules 403 and 404(b) of the Texas Rules of Criminal Evidence. See Tex. R. Crim. Evid. 403, 404(b). In his first two points, Hill argues that the court erred by overruling these objections.

"Evidence of other . . . acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Id. 404(b). Evidence that Hill participated in oral sex shows an "other" act within the purview of Rule 404(b). See Bishop v. State, 869 S.W.2d 342, 345 (Tex. Crim. App. 1993); see also Tex. Penal Code Ann. 21.01(1)(A) (defining "deviate sexual intercourse" as "any contact between any part of the genitals of one person and the mouth . . . of another person"). However, the evidence is admissible if the State offered it for its tendency to establish something other than Hill's character. See Tex. R. Crim. Evid. 404(b);Montgomery v. State, 810 S.W.2d 372, 394 (Tex. Crim. App. 1991) (on rehearing). The State argued that the evidence showed Hill's intent to commit the offense with M.H. Lois' testimony clearly aids the jury in determining Hill's intent and her reference to oral sex places his statement into its proper context. See id.; Morris v. State, 892 S.W.2d 205, 207 (Tex. App. Texarkana 1994, no pet.). Therefore, the court did not abuse its discretion when it overruled Hill's Rule 404(b) objection to her testimony. See Montgomery, 810 S.W.2d at 391. Point one is overruled.

Hill also objected that Lois' testimony about oral sex was unfairly prejudicial. See Tex. R. Crim. Evid. 403. The court may exclude relevant evidence if its probative value is "substantially outweighed" by the danger of unfair prejudice. Id. The court ruled that the probative value of the testimony outweighed its prejudicial effect and that the act of oral sex was "so interwoven" with Hill's statement that the testimony could not be presented otherwise. Given that this evidence related to a purely consensual act of Hill's wife and that Hill's statement evidencing a desire that M.H. "do this also" would not make sense if isolated from its context, the court did not abuse its discretion in overruling Hill's Rule 403 objection. See Montgomery, 810 S.W.2d at 392-93. Thus, we overrule point two.

Points three and four relate to statements made by an expert medical witness who confirmed that M.H. had, in fact, been abused. The State called Bethie Timmons, a therapist specializing in sexual assault cases, to testify concerning the behavioral characteristics of victims of sexual assault and whether M.H. displayed those characteristics. During a conference in the court's chambers prior to Timmons testifying, the prosecutor argued that the State was entitled to introduce such evidence. See Tex. R. Crim. Evid. 702; Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). The State expressly agreed, however, that it was not permitted to have Timmons testify that she believed that M.H. was telling the truth. Hill objected that Timmons should "not be permitted to give an opinion [comparing M.H. to the general characteristics of assault victims] in order to bolster the unimpeached testimony of the complaining witness." The court overruled Hill's objections and during Timmons' testimony before the jury, the following occurred:

[The State]:What other things did you notice about [M.H.]?

[Timmons]:Well, in my course of treatment I've noticed that there is -- she definitely shows signs of the confusion role in generational boundary, just in the interaction I noted between her and her mother. She is extremely angry in relation to the abuse.

[The State]:When you say --

[Defense]:Objection, Your Honor. We are going to object to the last statement as first being non-responsive.

THE COURT:Sustained. Instruct the jury they will disregard the last statement for any purpose.

[Defense]:Move for a mistrial.

THE COURT:Overruled.

. . .

[The State]:And what did [M.H.] say that [Hill] did?

. . .

[Timmons]:She said that he put his penis inside of her.

[The State]:All right. Assuming that this were true, how would this affect [M.H.] throughout her life?

[Defense]:Objection. Calls for an opinion that is not relevant to any fact before the Court.

THE COURT:Overruled.

[Timmons]:[M.H.] is going to need to figure out how to make -- the sexual abuse has occurred, and she's going to have to figure out --

[Defense]:Objection to the answer to the extent that it contains an opinion.

THE COURT:Sustained. Instruct the jury they will disregard the last statement for any purpose.

[Defense]:Move for a mistrial.

THE COURT:Overruled.

(Emphasis added). Hill now argues that the italicized portions of Timmons' testimony constitutes impermissible vouching for the credibility of M.H. and that his requests for a mistrial should have been granted. See Yount, 872 S.W.2d at 709-11.

Clearly, Timmons should not have testified that M.H. had been abused. See id. at 709; also Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993) (noting that the expert witness "did not testify directly that the children were sexually abused or that they were telling the truth" and "therefore did not approach the level of replacing' the jury, which . . . would violate [Rule] 702."). The State should have exercised more caution in preparing its witness than was displayed in this case. However, because the court correctly sustained Hill's objections and promptly instructed the jury to disregard Timmons' statements, the issue is not the whether the testimony was admissible, but, rather, whether the court's instructions to disregard were sufficient to cure any harm caused by Timmons' improper testimony.

Generally, an instruction to disregard is effective to cure the harm of improper testimony "unless it appears the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Barnes v. State, 876 S.W.2d 316, 326-27 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 115 S. Ct. 174, 130 L. Ed. 2d 110 (1994). Timmons did not directly comment on M.H.'s credibility or whether she personally believed that M.H. was being truthful, such as occurred in Martin v. State, 819 S.W.2d 552, 554-55 (Tex. App. San Antonio 1991, no pet.). Nor did she render an opinion on the credibility of child sexual-assault victims in general, as in Yount. See Yount, 872 S.W.2d at 707-08. Her statements were non-responsive answers to permissible questions by the State. The court immediately instructed the jury to disregard her statements. We view this situation with concern and believe that the determination is a close call. However, bearing in mind our function as a court of review, we cannot say that the evidence was clearly calculated to inflame the minds of the jury. See Barnes, 876 S.W.2d at 326-27. Nor can we conclude that these short, non-responsive answers are of such a character as to suggest the impossibility of withdrawing any negative impression produced on the jury's minds. See id. Thus, we defer to the ruling of the trial court and hold that the court did not err in denying Hill's motions for a mistrial. Points three and four are overruled.

Hill's remaining points raise complaints regarding the punishment phase of his trial. In point five he argues that the court should have excluded evidence which, if believed, tended to establish that he committed the offense of indecency with a child some eleven years prior to trial. See Tex. Penal Code Ann. 21.11(a)(2). Kimberly Gonzalez, Hill's twenty-four-year-old niece, testified that when she was thirteen she awoke from a nap to find Hill standing in front of her with "his pants off, and [he] had his penis in his hand in [her] face . . . close to [her] mouth." Prior to Gonzalez's testimony, outside the presence of the jury, Hill objected to the evidence on the theory that he could not be punished for the conduct because the statute of limitations had run. See Tex. Code Crim. Proc. Ann. art. 12.01(2)(D) (Vernon Supp. 1995). The court overruled his objection and he raises the same claim in point five, arguing that the court erred because he "could not be held criminally responsible for this alleged act."

Section 3(a) of article 37.07 of the Texas Code of Criminal Procedure provides that "evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act," is admissible at the punishment phase of a trial. See id. art. 37.07, 3(a) (Vernon Supp. 1995) (emphasis added). Unlike Rule 609(b) of the Texas Rules of Criminal Evidence, there is no remoteness limitation on admissibility of extraneous acts, either when the acts are used for cross-examination of witnesses or to aid the jury in assessing punishment. See id.; Tex. R. Crim. Evid. 609(b); Cherry v. State, 502 S.W.2d 9, 11 (Tex. Crim. App. 1973); Barnett v. State, 847 S.W.2d 678, 679-80 (Tex. App. Texarkana 1993, no pet.). We believe that the phrase, "for which he could be held criminally responsible," contemplates evidence concerning the defendant's participation as a party to extraneous acts and offenses. See Tex. Penal Code Ann. 7.01, 7.02. Thus, the court did not err by overruling Hill's objection to Gonzalez's testimony. Point five is overruled.

In points six and seven, Hill repeats his remoteness argument. He phrases it, however, as a constitutional attack on the court's charge that allowed the jury to consider the offense related by Gonzalez. The court's charge instructed the jury that, before considering that evidence, it was required to find beyond a reasonable doubt that the extraneous offense was committed and, if it so found, that it could only consider the extraneous conduct for the purpose of determining the punishment for the charged offense. Thus, the court correctly charged the jury regarding the evidence properly before it. See Tex. Code Crim. Proc. Ann. art. 37.07(3)(b) (Vernon 1981); George v. State, 890 S.W.2d 73, 75 (Tex. Crim. App. 1994); but see Mitchell v. Smith, 892 S.W.2d 213, 215 (Tex. App. Texarkana 1995, pet. granted). Additionally, Hill presents these points without argument or authorities that would demonstrate how the charge violated either the Texas Constitution's "due course of law" provision or the Federal constitution's "due process of law" provision. Thus, points six and seven present nothing for review and are overruled. See Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994).

During the punishment phase, in addition to Gonzalez's testimony, the State presented testimony from M.H. which showed that Hill had been sexually abusing her since she was eight-years old and from S.E., a fourteen-year-old friend of M.H., who testified that Hill "had his finger in [her] vagina" when she awoke one night while spending the night with M.H. M.H. testified first and Hill objected:

We would object first on the grounds of relevance. This is not designed to elicit a relevant response for sentencing.

Also object on the grounds that despite proper notice, we have not received notice of the State's intent to go into these matters.

Also we object on the grounds of the Fifth, Sixth, and 14th Amendment of the Federal Constitution, the ex post facto clause of the Federal Constitution, and applicable provisions of the State Constitution.

When the State called S.E. to testify, Hill objected again, urging the "same objections as for the preceding witness, Your Honor." Finally, when Gonzales testified, Hill likewise objected "on the same bases as the other witnesses."

In point eight, he argues that the court erred when it overruled these objections because the "unadjudicated offenses . . . were similar in nature to the offense of conviction." However, he did not present this argument to the trial court, and this specific objection is not clear in the context. See Tex. R. App. P. 52(a); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). His "shotgun" objection is not sufficient to preserve the argument he now advances on appeal. See Webb v. State, 899 S.W.2d 814, 818 (Tex. App. Waco 1995, pet. filed). Thus, point eight presents nothing for review and it is overruled. See Tex. R. App. P. 52(a); Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993).

Finally, in points nine, ten, eleven, and twelve, Hill argues that article 37.07(3)(a)'s definition of "prior criminal record" and section three's caption are vague, violating both the Texas and federal constitutions. However, Hill did not present this argument to the trial court. Again, nothing is presented for review. See id.; Webb, 899 S.W.2d at 818-19. Points nine, ten, eleven, and twelve are overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 31, 1995

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