Gregory Mark Bevills v. The State of Texas--Appeal from 51st District Court of Tom Green County

Bevills v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-154-CR
GREGORY MARK BEVILLS,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. CR90-0550-A, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING

A jury found appellant, Gregory Mark Bevills, guilty of aggravated sexual assault of a child. Tex. Penal Code Ann. 22.021 (West 1989). The court set punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of sixty-one years and a $10,000 fine. The appellant timely perfected his appeal. We affirm.

 
BACKGROUND

J.B., the complainant, identified the appellant as her stepfather. She testified that she was fifteen years old at the time of the trial and fourteen on the date of the offense charged. She testified that on or about March 13, 1990, when she was home alone with her stepfather and her younger sister, the appellant told her to lie on the couch, pulled her pants down, unzipped his pants, and put his penis inside her vagina.

J.B. also testified that the appellant had begun touching her breasts, through her clothing, when she was twelve years old. She testified that the appellant told her that if she ever told anyone, he would hurt her younger sister. These threats occurred on more than one occasion. J.B. testified that she was afraid that the appellant would kill her sister.

On appeal, appellant brings forward five points of error: (1) insufficiency of the evidence to sustain his conviction; (2) prejudicial comments by the court on the weight of the evidence; (3) exclusion of evidence of promiscuous sexual conduct of complainant; (4) denial of appellant's right of confrontation; and (5) trial court's intimidation of defense counsel with the threat of contempt.

 
DISCUSSION

In his first point of error, appellant contends that the evidence put forward by the state was insufficient to support the conviction. The standard of review for claims of insufficiency of the evidence is well-settled. The court of appeals, after viewing the evidence in the light most favorable to the prosecution, must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979) (emphasis in original); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

Article 22.021 of the Texas Penal Code sets forth the elements of the offense of aggravated sexual assault of a child. A person commits that offense if he intentionally or knowingly causes the penetration of the female sexual organ of a child by any means. In this case, J.B. testified that the appellant penetrated her vagina with his penis. For the offense to be aggravated, there must be evidence that the person committing the assault, by acts or words, places the victim in fear that death, serious bodily injury or kidnapping will be inflicted upon any person. J.B. testified that the appellant threatened to harm or kill her younger sister if J.B. refused appellant.

Article 22.011(c)(1) defines a "child" as a person younger than seventeen years who is not the spouse of the actor. J.B. testified that she was fourteen years old when the appellant first assaulted her. She was never married to the appellant. The jury had ample evidence to convict. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the court erred in commenting on the weight of the evidence and in making remarks calculated to convey the court's opinion of the case to the jury. (1) Defense counsel, however, made no objection at trial claiming that the court's comments were comments on the weight of the evidence. Absent an objection, the point is waived. Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982). Defense counsel's failure to object to the court's comments preserves nothing for review. Smith v. State, 595 S.W.2d 120, 124 (Tex. Crim. App. 1980).

Notwithstanding defense counsel's failure to properly preserve error, if any, we find that none of the statements of the court pointed to by the appellant go to the weight of the evidence. They more resemble the comments of the court in ruling on objections discussed in Liveoak v. State, 717 S.W.2d 691, 697 (Tex. App.San Antonio 1986), pet. ref'd, 741 S.W.2d 451 (Tex. Crim. App. 1987). (2) The appellate court held those comments were explanations and interpretations of the testimony used by the trial court to make its rulings and, although possibly violating section 38.05 of the Texas Code of Criminal Procedure, nonetheless constituted harmless error. Id. at 697. Similarly, without encouraging unnecessary judicial commentary, we find no showing that these explanations by the court resulted in either harm to the appellant or benefit to the State. Accordingly, appellant's second point of error is overruled.

In his third point of error, appellant complains that the trial court erred in prohibiting appellant from introducing evidence of promiscuous sexual conduct on the part of the complainant. Throughout the trial, appellant's counsel attempted repeatedly to ask questions of witnesses in the presence of the jury as to whether the victim, J.B., had engaged in three specific instances of sexual misconduct. None of these alleged instances involved the appellant and two of the incidents occurred after the alleged offense for which appellant was on trial. The court held three hearings outside the presence of the jury to consider this evidence.

Texas Rule of Criminal Evidence 412(a) specifically prohibits the admission of past sexual behavior of a victim of aggravated assault. Under this rule, there are five exceptions. Evidence of the past sexual behavior of a victim of sexual assault may be admitted: (1) if such evidence is necessary to rebut or explain scientific or medical evidence offered by the state, (2) if the evidence pertains to past sexual behavior of the victim with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior, (3) if the alleged victim's past sexual behavior relates to the victim's motive or bias, (4) if the evidence is admissible under Rule 609, or (5) if such evidence is constitutionally required to be admitted. See Tex. R. Crim. Evid. 412(b)(2). None of these exceptions are applicable to this proffered evidence. (3)

Questions regarding the admissibility of evidence of a victim's prior sexual conduct are within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Holloway v. State, 751 S.W.2d 866, 870 (Tex. Crim. App. 1988). Because we find that the trial court did not abuse its discretion, we overrule appellant's third point of error.

In his fourth point of error, appellant complains that because the court erroneously restrained his attorney's questions regarding the victim's prior sexual conduct, he was denied the right to confront the State's witnesses. In his fifth point of error, appellant complains that the court intimidated defense counsel, thus denying appellant effective assistance of counsel. Because both points of error involve the same rulings by the court, we will treat them together. As stated above, on three occasions, appellant attempted to introduce evidence of the complainant's sexual history. This evidence of the victim's prior sexual conduct was reviewed by the court in three in camera sessions. Both briefs discuss the fact that, during an in camera session, the court discussed defense counsel's failure to comply with Rule 412(c). The court also discussed defense counsel's statement to the court that he intended to solicit from witnesses evidence that the victim had engaged in shoplifting in New York, an alleged incident that would have occurred after the date of the sexual assault in question. This evidence was inadmissible under Tex. R. Crim. Evid. 608(b). In response to defense counsel's attempts to present such evidence, the trial court advised him that if he continued to violate the rules of evidence, the court would hold him in contempt.

The record indicates that on several occasions during the trial, defense counsel attempted to circumvent Rules 412(c) and 608(b). The court's warnings were justified. Appellant contends that the cumulative effect of the court's allegedly improper actions created a coercive atmosphere which operated to violate his rights to a fair trial and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Appellant cites Strickland v. Washington, 466 U.S. 668 (1984) and Bethany v. State, 814 S.W.2d 455 (Tex. App.Houston [14th Dist.] 1991, pet. ref'd). Both cases are inapposite.

In Strickland, the U.S. Supreme Court held that a convicted defendant's claim that counsel's assistance was so defective as to require reversal of the conviction has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that defense counsel made errors so serious that the attorney was not functioning as "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687. Appellant has shown neither that his attorney failed to function as counsel nor that defense counsel's representation deprived the defendant of a fair trial. The record shows instead that defense counsel effectively -- if at times somewhat overzealously -- represented appellant. Defense counsel vigorously cross-examined the State's witnesses and effectively introduced evidence in favor of the appellant.

Likewise, Bethany is not analogous to the facts of this case. In Bethany, the court of appeals held that the trial court and the State combined to interfere so thoroughly and on so many occasions with defense counsel's ability to make independent decisions about how to conduct a defense as to deny the accused his right to effective assistance of counsel. Bethany, 814 S.W.2d at 462. Bethany involved a litany of improprieties committed by the trial court and State's counsel with respect to the conduct of the trial and the ability of the defense to present evidence. These improprieties included ordering the defense to present evidence that he did not intend to, holding defense counsel in contempt and jailing him without bond during the course of the trial, improper ex parte communications with State's counsel, and requiring defense counsel to testify against the defendant when there were other witnesses available and known to the State who could have provided the same testimony. Id. at 456-62.

That is not the case here. In this case, the trial court properly admonished defense counsel that it would not tolerate his continued violation of the rules of evidence. It is not a violation of the right to effective counsel or due process for the court to inform counsel for the defense that it will consider further violations of evidentiary rules knowing violations subjecting counsel to the possibility of contempt. Points four and five are without merit and, therefore, are overruled.

Finding no error, the judgment of conviction is affirmed.

 

Mack Kidd, Justice

 

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: September 16, 1992

Do Not Publish

1. Appellant points to four comments that the court made as calculated to convey to the jury the court's opinion of the case:

 

(1) Appellant sought to have admitted a photograph, dated "1-18-91," to show there was no couch in the living room where the alleged offense occurred. In ruling, the court stated, "Those pictures show that last Friday [January 18, 1991] there wasn't one, right? I'll go ahead and allow it to be introduced."

 

(2) The judge told the jury that he was calling a short recess to allow the prosecutor to examine appellant's work record, and said, "I appreciate [the prosecutor's] consideration of the Court on that."

 

(3) When sustaining one of appellant's objections, the court stated, "I'm going to sustain the objection, although I don't think it's any great consequence at this point in time."

 

(4) Responding to defense counsel's objection to a particular question as repetitious, the prosecutor stated that he had rephrased the question "a little differently," and the court agreed; "It is rephrased somewhat differently. I'll go ahead and allow it."

2. In Liveoak, the statements that appellant complained of were: (1) the court's comment to the effect that, since the witness admitted making a pretrial statement inconsistent with his testimony at trial, the proffered tape recording of that pretrial statement served no purpose, and (2) the repetition by the court of prior testimony in the course of making a ruling on admissibility of subsequent testimony. 717 S.W.2d at 696-97. The trial court's comments in the instant case were substantially more innocuous than the court's in Liveoak.

3. Appellant's brief appears to assert that this evidence was necessary to a promiscuity defense. See Tex. Penal Code Ann. 22.011(d)(1) (West 1989). However, the promiscuity defense is not available in cases of aggravated sexual assault on a child. Tex. Penal Code Ann. 22.021(d) (West 1989).