Donald D. Maynard v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DONALD D. MAYNARD,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00158-CR

Appeal from the

Criminal District Court No. 5

of Dallas County, Texas

(TC# F-0273253-KL)

O P I N I O N

This is an appeal from a conviction for the offense of aggravated sexual assault of a child under fourteen. After entering a plea of guilty, Appellant was sentenced by a jury to the maximum punishment permitted: life imprisonment and a $10,000 fine. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial Donald Maynard, Appellant, pled guilty to the offense of aggravated sexual assault of M.D., a child under fourteen. The State s evidence during the punishment phase showed that Maynard, a sixty-one-year-old man, put his mouth on M.D s penis around twenty-four times over a span of nearly two years. Maynard himself testified and confessed to these crimes. He admitted that his sexual relationship with M.D. stopped only because he was arrested.

The State also presented evidence of another child victim named J.D. J.D. testified that he met Maynard when he was eight years old (in 1991) at a VFW bar frequented by his family. At the invitation of Maynard, J.D. and his brother went to Maynard s apartment to play video games. J.D. claimed that while his brother was in the bedroom playing video games, Maynard told J.D. to get down on his hands and knees, removed his underwear, fondled his penis, and penetrated his anus with his finger. Maynard then went to the bathroom and returned with a stick which he used to penetrate J.D. s anus. On other occasions, Maynard forced him to perform oral sex, that there were times when Maynard penetrated him anally with his penis, and that Maynard took photographs of him barely clothed and naked. According to J.D., such abuse continued until he was fifteen, when he fled from Maynard s apartment and never returned. He estimated that Maynard sexually assaulted him between 225 to 275 times over a seven-year-span. J.D. said that as a result of the abuse, he currently has a bleeding problem in his anal cavity, though he has not seen a doctor.

The State introduced into evidence Maynard s voluntary statement given to the police. In it, Maynard said he met J.D. when J.D. was eight or nine years old. He admitted that he put J.D. s penis in his mouth on one occasion. Maynard stopped seeing J.D. because he had to stop with the sex thing. At trial, Maynard admitted to the act described in his statement but denied any other sexual contact, such as anal sex, anal penetration with any object, or taking nude photographs of J.D. He denied any other sexual relationships with any other men or boys. While he denied any sexual interest in young boys, he could not explain why he did what he did with M.D. and J.D.

II. DISCUSSION

In Issue Nos. One and Two, Maynard contends that the introduction into evidence of a recorded telephone conversation between J.D. and Maynard and a transcript of that conversation violated his Sixth Amendment right to confront witnesses against him.

As part of the police investigation of Maynard, J.D. arranged to record a phone conversation with Maynard. However, the recording equipment malfunctioned and the call was not recorded. Nevertheless, J.D. testified as to the substance of this conversation. He asked Maynard if he felt sorry for what he did. Maynard responded that he was sorry. He knew things went too far and he should have stopped while he was ahead.

Because this conversation was not recorded, J.D. made a second call the next day. This conversation was successfully recorded. After questioning J.D. about the existence of the tape, the State introduced the tape recording and a transcript of the conversation into evidence. Maynard objected, claiming that both were irrelevant, cumulative, unfairly prejudicial, that they would confuse the issues and mislead the jury, and would also deny him his Sixth Amendment right to confrontation of the witness. The State responded that the tape and transcript were relevant to determining an appropriate punishment, especially since they included admissions made by Maynard. Furthermore, since J.D. was available for cross-examination, Maynard was not denied his right of confrontation. Maynard s objections were overruled and the recording and transcript were subsequently published to the jury. After the State passed the witness, defense counsel cross-examined J.D.

On appeal, Maynard argues that because J.D. was available to testify, the use of the recorded telephone conversation in lieu of live testimony by J.D. violated his Sixth Amendment right of confrontation. We disagree.

The Confrontation Clause of the Sixth Amendment provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI. The primary interest protected by the Confrontation Clause is a defendant s right to cross-examine witnesses. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). While Maynard had the opportunity to cross-examine J.D. and did, in fact, cross-examine J.D., he nevertheless maintains that his right of confrontation was violated. He argues that any out-of-court statements are admissible only upon a showing that the declarant is unavailable, and the fact that J.D. testified reveals that J.D. was available. He concludes, therefore, that the recorded conversation was inadmissible. He cites in support of this contention Long v. State, 742 S.W.2d 302 (Tex.Crim.App. 1987). Yet, if the out-of-court declarant testifies at trial and is subject to full and effective cross-examination, there is no need for a showing of unavailability. See Briggs v. State, 789 S.W.2d 918, 922 (Tex.Crim.App. 1990)(quoting Buckley v. State, 786 S.W.2d 357, 360 (Tex.Crim.App. 1990)).

Maynard argues, nevertheless, that the fact that J.D. testified did not vindicate his right of confrontation because he was forced to choose between allowing the state to present its case twice or waiving the opportunity to cross-examine on the contents of the tape. He again relies on Long v. State to support this contention. However, Long is readily distinguishable from the instant case. In Long, the State did not present the complainant/declarant as a witness during its case-in-chief. Long, 742 S.W.2d at 320. Accordingly, the Court focused on the dilemma of either forcing the defendant to call his accuser as a witness in order to question her or waiving the opportunity to cross-examine. Id. at 320. Placing the defendant in this difficult position amounted to a violation of his right of confrontation and due process. Id. However, when the declarant testifies during the State s case-in-chief and the defendant is permitted to cross-examine him, there is no violation of the right of confrontation. See Briggs, 789 S.W.2d at 922; Fultz v. State, 940 S.W.2d 758, 761-62 (Tex.App.--Texarkana 1997, pet. ref d); Hemphill v. State, 826 S.W.2d 730, 732 (Tex.App.--Houston [14th Dist.] 1992, pet. ref d); Mares v. State, 758 S.W.2d 932, 934 (Tex.App.--El Paso 1988, pet. ref d). When the witness is called during the State s case-in-chief, the unfair dilemma of the defendant being forced to call the witness and allowing the State to present its evidence twice dissolves. It becomes simply a matter of questioning the witness on cross-examination or not. Here, J.D. testified during the State s case-in-chief. Because J.D. testified during the State s case-in-chief and was subject to full cross-examination, Maynard s right of confrontation was fully vindicated. Issues Nos. One and Two are overruled.

In Issues Nos. Three and Four, Maynard asserts that the probative value of the tape and the transcript was substantially outweighed by the danger of unfair prejudice, confusion of issues, and misleading the jury.

In the recorded telephone conversation, J.D. asked Maynard if he was sorry for what he did. Maynard indicated that he was sorry and said, The horseplay just went too far--you know--I like the hell out of you. When J.D. asked what he meant by horseplay, Maynard responded, Well, that s what I call it. If you call it something else, O.K. The following exchange subsequently occurred:

[J.D.] But, uh, I mean -- it was sex. I mean, I was --

[Maynard] Yeah.

[J.D.] 8, 9, 10 years old. I mean --

[Maynard] Hey.

[J.D.] Huh?

[Maynard] Come and talk to me in person.

When J.D. asked Maynard if he ever thought he was hurting J.D., Maynard answered, No. J.D. proceeded to tell Maynard that he was worried about giving his girlfriend a sexually transmitted disease and wanted to know if Maynard had anything. Maynard said if he had anything, the doctors would have found it when he recently had blood tests done. Throughout the conversation, Maynard asked J.D. to come talk to him in person and to come to his apartment.

During the punishment phase of trial, any evidence the court deems relevant to sentencing is admissible. See Tex.Code Crim.Proc.Ann. art. 37.07, 3(a)(1)(Vernon Pamphlet 2004-05). Relevant evidence is that which assists the fact finder in assessing the appropriate sentence under the circumstances, including evidence of the defendant s personal responsibility and moral guilt. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999); Stavinoha v. State, 808 S.W.2d 76, 79 (Tex.Crim.App. 1991).

While Rule 403 favors the admissibility of all relevant evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Evid. 403; Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). Unfair prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, such as an emotional one. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1990). The twin dangers of confusion of the issues and misleading the jury arise when admitting certain evidence tends to sidetrack the jury into disputes only tangentially related to the issues in the case. Wiley v. State, 74 S.W.3d 399, 407 n.21 (Tex.Crim.App.), cert. denied, 537 U.S. 949, 123 S. Ct. 415, 154 L. Ed. 2d 294 (2002). We must consider several factors in determining whether the danger of the negative impact substantially outweighs the probative value of the evidence. These include (1) how compellingly the evidence serves to make more or less probable a fact of consequence; (2) the potential the evidence has to impress the jury in some irrational but indelible way; (3) how much trial time the proponent needs to develop the evidence; and (4) how great is the proponent s need for the evidence. Mozon, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). The trial court has wide latitude in ruling on the prejudicial nature of the evidence. Montgomery, 810 S.W.2d at 389-90. We therefore review a trial court s decision to admit evidence under an abuse of discretion standard and its ruling will not be disturbed unless it is outside the zone of reasonable disagreement. Mozon, 991 S.W.2d at 846; Arzaga v. State, 86 S.W.3d 767, 773-74 (Tex.App.--El Paso 2002, no pet.). While doing so, we are cognizant that during the punishment phase there are no discrete factual issues. Rather, deciding what punishment to assess is a normative process, Rogers, 991 S.W.2d at 265.

Bearing in mind that the issue before the jury was Maynard s punishment, where the focus is on the personal responsibility and moral blameworthiness of the defendant, we hold that the trial court did not abuse its discretion in admitting the taped conversation and the transcript. The conversation was probative of the extent of Maynard s sexual assault, his treatment of a former victim, his views of the assault, and his level of remorse, all of which would assist the jury in assessing an appropriate punishment. The conversation tended to show that Maynard had very little remorse, that he denied the wrongfulness of his actions, and that it was all very casual to him. The extent of the abuse was contested during the punishment phase. Maynard confessed to one act sexual assault while J.D. alleged over 200. A possible inference from the phone conversation is that there was more than one instance of sexual contact between Maynard and J.D., that it was more than oral sex, and that Maynard had did not recognize the heinous nature of his offense. While it was by no means conclusive, the conversation tends to support J.D. s claims and the State s theory that Maynard is a habitual victimizer of young children with a lack of appreciation for the extent of his wrongdoing. Such evidence is clearly prejudicial in that it shows Maynard to be a bad person, but this does not make it unfairly prejudicial. See Nenno v. State, 970 S.W.2d 549, 564 (Tex.Crim.App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999).

Maynard argues that the taped conversation was unfairly prejudicial because the conversation was ambiguous. From it, one cannot tell whether Maynard was admitting to the one incident that he described in his statement and testified to or the 225 incidents that J.D. mentioned. Likewise, one cannot tell whether Maynard admitted to oral sex or anal sex. According to Maynard, this ambiguity diverted the jury s attention away from the concrete allegations and invited the jury to set a life sentence based on speculation. First, it must be noted that this ambiguity was not a function of the taped conversation, but a function of the competing testimony of J.D. and Maynard. The tape can be seen as a means of resolving that ambiguity. Second, in making this claim of ambiguity, Maynard essentially admits that it is reasonable to interpret the evidence as proof of an extended period of abuse. It was the task of the jury to determine whether the evidence offered was sufficient to prove that abuse beyond a reasonable doubt. See Arzaga, 86 S.W.3d at 781. If the jury accepted that evidence, it was not an improper basis for determining an appropriate punishment. On the contrary, it was precisely the type of information the jury needed to determine Maynard s blameworthiness. Nor is there anything inflammatory in the tape itself that would leave an irrational impression in the mind of the jury or lead them off the main issue during the punishment phase of trial: an appropriate punishment. We hold that the trial court did not abuse its discretion in admitting the tape recording and the transcript into evidence during the punishment phase. Issues Nos. Three and Four are overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

January 27, 2005

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Larsen, J., not participating)

(Do Not Publish)