Paul Gregory, Sr. v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-200-CR

 

PAUL GREGORY, SR.,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6749

O P I N I O N

A jury convicted Appellant Paul Gregory, Sr. of five counts of aggravated sexual assault. See Tex. Penal Code Ann. 22.021(a)(1)(B)(ii), (iii), (2)(B) (Vernon Supp. 1997). // The jury sentenced Gregory on each count to ninety-nine years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine.

Gregory brings this appeal presenting four points of error in which he asserts that the evidence is factually insufficient to support his conviction, that the State s delay in indicting him denied him due process and due course of law, and that the court erred in admitting certain exhibits not disclosed prior to trial pursuant to a pretrial discovery order. We will affirm the judgment.

FACTUAL BACKGROUND

The Hamilton County grand jury presented an indictment against Gregory on February 24, 1995, alleging that he had committed five instances of aggravated sexual assault against his daughter, J.G. The first three occurrences allegedly happened on or about July 9, 1989 (the 1989 incident ). These allegations are that Gregory caused J.G. s vagina to contact his penis; that he caused her vagina to contact his mouth; and that he caused his penis to penetrate her mouth. The indictment alleges that the fourth and fifth occurrences happened on or about December 26, 1986 (the 1986 incident ). These counts allege that Gregory caused J.G. s vagina to contact his penis and caused his penis to penetrate her mouth.

The record reflects that three months after indictment Gregory signed a waiver of extradition to face a murder charge and other charges pending in Georgia. The homicide occurred in December 1994. Gregory pleaded guilty to a lesser charge of voluntary manslaughter and other related charges. On December 4, 1995, the Georgia court sentenced him to twenty years confinement on the manslaughter charge pursuant to a plea agreement. The court also assessed punishment on seven other charges. // The State of Texas brought Gregory to trial for the aggravated sexual assault charges in July 1996.

At trial, the State introduced medical records from clinics in Clifton, Gatesville, and Temple. The records from the Clifton clinic consist primarily of the physician s handwritten notes which are difficult to read. J.G. was examined in this clinic twice in February 1987. On the first visit, the doctor noted that J.G. s hymen was intact. Six days later, the attending physician apparently found no definitive evidence of child abuse.

J.G. went to the Scott & White clinic in Gatesville in October 1989. During this examination, the doctor found some erythema of the labia minor and introitus of the vagina with breakdown of the hypen hymen, partially. The findings could indicate prior penetration but they do not absolutely suggest this. Other kinds of vigorous repetitive activity such as athletics would require could lead to a tear of the hymen and the erythema is a non-specific finding.

A physician at Scott & White Hospital in Temple examined J.G. one month later. This doctor observed redness of the hymenal opening and a deep notch at the 10 o clock position [of the opening]. The doctor assessed J.G. s condition to be consistent with the history of sexual abuse alleged.

J.G. testified that she was born May 17, 1981. She testified that Gregory sexually assaulted her at her grandparents house in Hamilton on July 9, 1989. She explained that on this occasion Gregory took her to a shed beside the house. He told her to disrobe and get in the bed. She testified that Gregory inserted his penis in her vagina, licked her vagina, and made her place his penis in her mouth. She recalled that it happened on July 9 because that is the date of her uncle s wedding.

J.G. also testified about Gregory sexually assaulting her on the day after Christmas in 1986. On this occasion, she recalled that Gregory told her to get out of her bed and come to his room. He told her to undress and get in bed with him. Gregory placed his penis in her vagina and in her mouth, made her touch it with her hand, and licked her vagina. She recalled this date because it was the Christmas that Gregory arrived home a day late for the holiday, and as a result, she and her brother could not open their presents until the day after Christmas.

J.G. testified that Gregory, two of his brothers, and her own brother sexually assaulted her in a similar manner on other occasions. She recalled that Gregory s brother Sammy assaulted her only once; Gregory s brother Wayne molested her for a brief period of time when she lived with him and his wife; and her own brother assaulted her about twenty times. //

On cross-examination, Gregory sought to impeach J.G. with her three prior written statements.

J.G. made the first of these statements on October 4, 1989. In this statement, J.G. told of how Gregory attempted to insert his penis in her vagina after their car broke down outside of Brownwood during a trip from Clovis, New Mexico to Hamilton. She believed this incident occurred on July 6 of that year. She stated that it hurt when Gregory attempted this assault. She also described another incident which happened about July 7th during which Gregory tried to do it again[,] but [she] pulled away and told him no. J.G. alleged that this second occurrence happened at her grandparents home.

J.G. alleged without specifying a time frame that Gregory ha[d] put [her] hand on his [penis] 3 times. She also alleges that her brother and her uncle Sammy sexually assaulted her on different occasions.

J.G. provided her second statement on October 18. In this statement, she again described the incident on the trip from New Mexico. She explains in this statement that this assault occurred on the way to pick up her brother. // She stated that [Gregory s penis] wouldn t go so he licked her vagina and put her hand on his penis. She also described an occasion when Sammy inserted his finger in her vagina and two other occasions when he attempted to sexually assault her without success.

J.G. provided another written statement in December 1994. In this statement, J.G. explained that the 1986 incident occurred in the shed beside her grandparents house. J.G. s description of the incident largely correlates with her testimony, except for the location and except that in the statement she did not state that Gregory licked her vagina on this occasion.

The 1994 statement also describes a period from May to September of 1987 when her brother and she rode with Gregory in his truck. // During this period, Gregory apparently sexually assaulted her on numerous occasions. After September, she stated that Gregory and her brother sexually assaulted her real often in the shed at her grandparents house.

She again described the incident during which Gregory assaulted her during the trip from Clovis to Monahans. Her 1994 description of this incident substantially correlates with her 1989 statements. In this statement, she recalls that the incident occurred July 7, 1989, on the way back from New Mexico for Sammy s wedding.

J.G. next describes the July 9 incident. Her 1994 statement largely tracks her testimony with the exception that in the statement she stated that the incident occurred in a bedroom inside her grandparents home. In this statement she relates that Gregory continued to sexually assault her until she moved out in September 1989. Finally, she tells of Wayne playing with [her] apparently during January and February of 1993 or 1994. //

Gregory s counsel asked J.G. why she had omitted so many details from her 1989 statements. She explained that her aunt Debbie, Wayne s wife, discouraged her from telling the whole story. J.G. also testified that because she was younger at the time, her recollection of dates and times was not as precise. According to J.G., she did provide greater detail of the abuses to a counselor whom she began to see in 1989. She also testified that at first Debbie encouraged her to tell everything, but after J.G. began to talk about what happened, Debbie told her that she would tell them in court.

Gregory s evidence consisted of the testimony of a Department of Public Safety polygraph operator and other witnesses whom he called in an effort to discredit J.G. s testimony. The polygraph operator testified that he asked Gregory four questions about the allegations during a polygraph examination in October 1989. Gregory denied any wrong-doing in response to these questions, and his responses indicated no deception. The examiner testified that he believed the results of the examination to be valid and reliable.

A Hamilton County Sheriff s Deputy testified that the sheriff s department normally does not proceed with charges once a suspect passes a polygraph examination. Another deputy testified that the polygraph is not completely reliable. He recalled past cases where subjects passed the test but later confessed to the crime which they were suspected to have committed. He also expressed his opinion that an accomplished liar or someone who doesn t have any remorse or feel any guilt about what [he has] done . . . might not show deception.

Debbie testified that she never discouraged J.G. in any way from talking about what had happened to her. She explained that she took J.G. to counseling and to the physicians in Gatesville and Temple for examination. She also accompanied J.G. to the sheriff s department when she provided her first statement in 1989. Debbie testified that she believed the allegations against Gregory when J.G. first made them. In fact, she drove to Clovis and spent a week attempting to retrace Gregory s steps in an effort to locate the house near Brownwood // where Gregory assaulted J.G. in 1989.

Debbie later found J.G. to be dishonest on occasion. She described situations where J.G. would deny doing things which Wayne and she knew she had done and another occasion when J.G. stole a paper from another student at school that had been turned in, erased the student s name off of the paper and wrote her own and swore she didn t do that. Debbie also described dramatic mood swings J.G. exhibited when she lived with her. She explained that J.G. called the child abuse hotline several times to report that Debbie and Wayne were physically abusing her. According to Debbie, workers with the Child Protective Services division of the Department of Protective and Regulatory Services ( CPS ) investigated her home on more than one occasion. She testified that [t]hey didn t find anything and closed the case[ each time]. Debbie concluded that she no longer believes the allegations J.G. has made against Gregory.

On cross-examination, Debbie agreed that she had previously testified about the allegations in a hearing for temporary managing conservatorship of J.G. During this prior hearing, Debbie and Wayne testified that J.G. had been sexually abused by Gregory and her brother for at least three years and thus, she and Wayne should be given temporary custody of J.G. She also conceded that the counselor, the physicians, and the sheriff s deputies all believed J.G. s allegations. Debbie conceded that J.G. s mood swings would be expected from a child who had suffered the abuse alleged. She testified that the only thing that had changed since her prior testimony was J.G. s allegation that Wayne had molested her.

Debbie clarified on redirect examination that the additional allegation is not the only reason she no longer believes the allegations.

It s hard to pinpoint just one thing that s changed the whole situation. The fact that she didn t want to live there, she was trying to get out any way she could, some of the things she had pulled trying to cause harm to me and my son, just different little things.

Finally on recross, Debbie expressed her opinion that based on the medical evidence J.G. was in fact sexually abused. However, she believes that Sammy and J.G. s brother, not Gregory, perpetrated this abuse.

Wayne testified that he had mixed emotions about the veracity of J.G. s allegations, notwithstanding his testimony in the custody hearing. He explained that he no longer believes the allegations. He recalled occasions when J.G. had lied to him in the past. He also testified that J.G. had called the child abuse hotline more than once alleging that Debbie and he had physically abused her.

In rebuttal the State called Robbie Dalton, a former CPS employee. Dalton investigated J.G. s complaints against Debbie and Wayne. She produced seven photographs maintained by the agency which were made during the investigation of J.G. s complaints. Two of the photographs depict bruises to J.G. s eyes; one depicts a busted lip on the inside of her mouth ; three depict finger marks left on her arm ; and the last depicts a bruise to the back of her legs. Dalton took the first three photographs in October 1993. She took the other four in March 1994.

Dalton concluded that some physical abuse had occurred. After a second referral which confirmed continued abuse, CPS required Debbie and Wayne to undergo counseling or J.G. would be removed from their home.

The lady with whom J.G. currently resides testified in the State s rebuttal case that she trusts J.G. and believes her. She recalled one incident she witnessed during which Debbie backhanded J.G. when she hesitated about doing [the laundry]. She stated on cross-examination that she believes the allegations of sexual abuse J.G. has made are true.

Gregory concluded the evidence by calling his former attorney Keith Woodley. The record reflects that the State indicted Gregory in November 1989 for a single count of indecency with a child by exposure. See Tex. Penal Code Ann. 21.11(a)(2) (Vernon 1994). // Woodley testified that the district attorney agreed that if Gregory passed a polygraph examination he would dismiss the charge. //

As noted above, Gregory passed the polygraph examination in October 1989, prior to the indictment. The district attorney dismissed the indecency case in March 1990 for the stated reason that the evidence was insufficient because the State [could not] prove that an offense occurred in Hamilton County.

FACTUAL SUFFICIENCY

Gregory contends in his first point that the evidence is factually insufficient to prove the allegations of the indictment. He points to the results of his polygraph examination and inconsistencies and inaccuracies in J.G. s testimony as the basis for this alleged deficiency.

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse "only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id.

We consider all the evidence in the record related to the contested issue, "not just the evidence which supports the verdict." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We review the evidence tending to prove the issue, "and compare[] it to the evidence which tends to disprove that [issue]." Id. We give appropriate deference to the jury's decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the "verdict merely because [we] feel that a different result is more reasonable." Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 146, 149 (Tex. 1986)).

We review the record to see if it contains factually sufficient evidence to prove (1) Gregory committed the offenses alleged; (2) in Hamilton County; (3) on the dates alleged; and (4) in the manners alleged.

The evidence tending to support the allegations includes the following:

J.G. testified that Gregory sexually assaulted her on July 9, 1989. She recalled this date because it is the date of Sammy s wedding;

she testified that Gregory also sexually assaulted her on December 26, 1986. She recalled this date because it was the Christmas that Gregory arrived home a day late for the holiday, and as a result, she and her brother could not open their presents until the day after Christmas;

she testified that the assaults Gregory committed on July 9, 1989, and December 26, 1986, occurred at her grandparents home in Hamilton County;

she clearly and unequivocally testified that Gregory sexually assaulted her in each of the five manners alleged in the indictment;

J.G. s 1994 written statement corroborates her testimony;

the Scott & White physicians both noted redness around J.G. s vagina and observed that this condition is consistent with sexual abuse;

the doctor in Temple observed a deep notch in her hymenal opening which the doctor characterized as a condition consistent with the abuse alleged;

Debbie believes J.G. was sexually assaulted and Wayne and she both testified during the custody hearing that Gregory had sexually assaulted her;

Sammy and J.G. s brother were both convicted of sexually assaulting J.G., thus corroborating other portions of her testimony and written statements; and

Gregory himself told the officers that he and J.G. had taken a trip from Clovis to Monahans during which the car broke down, thus corroborating this aspect of J.G. s testimony and written statements.

Other evidence in the record tends to disprove the allegations:

J.G. made no mention of the 1986 incident in her 1989 written statements or her oral statements to the investigators in 1989;

The 1989 written and oral statements do not mention Gregory sexually assaulting J.G. at her grandparents home in July 1989 other than a reference in the October 4 statement to Gregory forcing J.G. to put her hand on his penis at her grandparents home about July 7th ;

J.G. s 1989 statements and her testimony assert that Gregory attempted to sexually assault her near Brownwood when their car broke down although the car actually broke down outside Muleshoe;

J.G s 1994 statement varies significantly from her 1989 statements it describes the 1986 incident; it provides specific dates for the 1986 and 1989 incidents; it gives a more detailed description of the 1989 incident; it more explicitly describes occasions when her brother sexually assaulted her; it makes no mention of Sammy sexually assaulting her; and it alleges that Wayne molested her;

The 1994 statement varies somewhat from J.G. s testimony concerning the location of the 1986 and 1989 incidents she testified that the 1986 incident occurred in the house but her statement indicates that Gregory assaulted her in the shed on this occasion; she testified that the 1989 incident occurred in the shed but the statement indicates it happened in the house;

Debbie and Wayne testified that they believe J.G. is lying about the allegations against Gregory;

The Clifton doctor found no evidence of sexual abuse; and

The physician in Gatesville explained that the redness and hymenal damage he observed do not absolutely suggest [penetration] and could have occurred as a result of vigorous[,] repetitive athletic activities.

Gregory argues that the inconsistencies and inaccuracies of J.G s testimony and statements and the fact that his polygraph results indicated no deception render the evidence factually insufficient to support the verdict. However, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166.

Because we cannot say that the jury s verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias[,] we find the evidence factually sufficient to support the verdict. Id. (quoting Clewis, 922 S.W.2d at 135). Thus, we overrule Gregory s first point.

PREINDICTMENT DELAY

Gregory avers in his second point that the length of time between the date of the offenses and the date of indictment operated to deny him his rights to due process and due course of law under the state and federal constitutions. U.S. Const. amends. V, XIV, 1; Tex. Const. art. I, 19.

The State responds that Gregory has not properly preserved this claim for our review because he failed to present it first to the trial court. See Tex. R. App. P. 52(a); Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1995) (on rehearing). While this may be true, we nevertheless will review Gregory s complaint in the interests of justice. See Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994).

The applicable statute of limitations generally sets the limit for preindictment delay. United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 464, 30 L. Ed. 2d 468 (1971); State v. Horner, 936 S.W.2d 668, 671 (Tex. App. Dallas 1996, pet. ref d). The statute of limitations for aggravated sexual assault of a child is ten years. Tex. Code Crim. Proc. Ann. arts. 12.01(2)(D), 12.03(d) (Vernon Supp. 1997).

Notwithstanding the applicable statute of limitations however, the due process rights of an accused prohibit the State from engaging in an oppressive preindictment delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52 L. Ed. 2d 752 (1977); Horner, 936 S.W.2d at 671. A preindictment delay violates due process when it: (1) causes a substantial prejudice to the accused s right to a fair trial; and (2) is an intentional strategy on the part of the State to gain a tactical advantage over the accused. Marion, 404 U.S. at 324; 92 S. Ct. at 465. We must decide whether the delay violates those fundamental conceptions of justice which lie at the base of our civil and political institutions . . . and which define the community s sense of fair play and decency. Lovasco, 431 U.S. at 790, 97 S. Ct. at 2049 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 342, 79 L. Ed. 791 (1935); Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205, 210, 96 L. Ed. 183 (1952)).

The same analysis applies in determining whether the delay violates the accused s right to due course of law under the Texas Constitution. See Moore v. State, 943 S.W.2d 127, 130 (Tex. App. Austin 1997, no pet. h.); State v. Kuri, 846 S.W.2d 459, 471 (Tex. App. Houston [14th Dist.] 1993, pet. ref d).

Gregory contends that the delay has substantially prejudiced him because the facts at trial [in 1989] would have been substantially different. He notes that he would have been able to testify without concern of being impeached by his Georgia convictions; he would have had employment records with which he could impeach J.G. s testimony; and J.G. would have been seven years younger and her testimony not bolstered by the counseling she received.

In this case, the State dismissed its original indictment against Gregory in 1990 after he passed a polygraph examination and after J.G. provided conflicting statements as to what had happened and where it occurred. No further investigation on the case took place until J.G. herself came forward in 1994 to provide a new statement. As J.G. explained, I am 13 now and I wont [sic] everybody to know the truth, I ve been to counseling and I feel good about myself. I m with a family now that I know will protect me and that the Gregory s hurt [sic] me no more.

The grand jury presented Gregory s indictment just over eight years and two months after the 1986 incident. The sheriff department s report, which Gregory offered in evidence, reflects that the department reopened the case in December 1994 at the request of the district attorney.

From the record before us, we cannot say that the delay between the commission of the offenses and the presentment of the indictment substantially prejudiced Gregory s right to a fair trial. See Kuri, 846 S.W.2d at 471. The record similarly does not reveal any evidence that the State intentionally delayed seeking Gregory s indictment in order to gain a tactical advantage. See State v. Horner, 936 S.W.2d 668, 672 n.4, 673 (Tex. App. Dallas 1996, pet. ref d). Thus, we conclude that the delay violated neither Gregory s due process rights under the federal constitution nor his right to due course of law under the state constitution. See Kuri, 846 S.W.2d at 471. Accordingly, we overrule his second point.

NON-DISCLOSURE OF EVIDENCE

Gregory complains in his third and fourth points that the court erred in admitting evidence which the State failed to disclose prior to trial pursuant to the court s pretrial discovery order. He challenges the admission of the Clifton medical records in his third point and the CPS photographs in his fourth.

Article 39.14 of the Code of Criminal Procedure provides for discovery in a criminal case. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979). Specifically, article 39.14 permits the court to order discovery of unprivileged items which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. Id.

The accused bears the burden of proving that the evidence which he seeks to discover is within the State s custody. State v. Williams, 846 S.W.2d 408, 410 (Tex. App. Houston [14th Dist.] 1992, pet. ref d). Upon proper motion, the State should disclose evidence it plans to use at any stage of the trial. Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977); Dockins v. State, 852 S.W.2d 50, 53 (Tex. App. Texarkana 1993, pet. ref d). However, the State is generally not required to reveal [evidence] other than [that] it intends to [introduce at trial]. Beets v. State, 767 S.W.2d 711, 747 (Tex. Crim. App. 1987) (on rehearing) (second emphasis added). The statute does not require the State to introduce evidence it does not know it will use during a later stage of trial. See Young, 547 S.W.2d at 27; Dockins, 852 S.W.2d at 53.

When an accused claims the trial court erred in permitting the State to introduce evidence not disclosed pursuant to a discovery order, we must determine whether the court abused its discretion in admitting the evidence. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981).

The Medical Records

Gregory argues that because the State knew of the existence of the medical records of the Clifton clinic before trial it had a duty to disclose those records to him. He alleges that the State asked the district clerk to issue a subpoena for the records nine days before trial. The State s subpoena application does not appear in the record before us. Although Gregory claims that he has requested a supplemental transcript containing the application, we have never received it.

Nevertheless, the timing of the State s knowledge of the existence of these records is not dispositive of this issue. The court s discovery order required the State to produce evidence of which the District Attorney has knowledge, and which are in the possession, custody, or control of the State or any of its agencies . . . . Assuming for the sake of argument that the State had knowledge of the records, Gregory must also show that the records were in the State s custody. Williams, 846 S.W.2d at 410.

Gregory offered no evidence to show that the Clifton medical records were in the State s possession at any time before trial. Thus, we cannot say that the court abused its discretion in admitting these records in evidence. Hightower, 629 S.W.2d at 925. Accordingly, we overrule Gregory s third point.

CPS Photographs

CPS is a state agency. Thus, evidence in the custody of CPS is within the custody of the State for purposes of article 39.14. See Reed v. State, 644 S.W.2d 494, 498 (Tex. App. Corpus Christi 1982, pet. ref d). Accordingly, we must determine whether the State violated the court s discovery order by failing to disclose the photographs and if so, whether the court abused its discretion by admitting them.

The photographs have no direct bearing on Gregory s guilt or innocence. The State made no reference in its case-in-chief to J.G. s allegations that Debbie and Wayne physically abused her. To the contrary, Debbie testified during Gregory s case-in-chief that J.G. had made several phone calls to the child abuse hotline. Debbie explained that CPS found no evidence of abuse when it investigated these calls.

The State offered the photographs, along with Dalton s testimony, as rebuttal evidence. The state could not anticipate that Gregory would attack J.G. s credibility by suggesting that she had made false reports of child abuse against other caregivers. Thus, the State had no duty to disclose the photographs prior to trial. See Young, 547 S.W.2d at 27; Dockins, 852 S.W.2d at 53. Accordingly, we conclude that the court did not abuse its discretion in admitting the photographs. We overrule Gregory s fourth point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 20, 1997

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