JOHN EARL MCGREW,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE
Annotate this CaseCOURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01022-CR
NO. 05-88-01023-CR
NO. 05-88-01024-CR
JOHN EARL MCGREW,FROM A DISTRICT COURT
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES WHITHAM, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
JULY 25, 1989
John Earl McGrew was convicted by a jury on one count of aggravated sexual assault and two counts of indecency with a child. FN:1 Punishment was assessed at life imprisonment on the aggravated assault conviction, and twenty years imprisonment on each indecency with a child conviction. Appellant asserts points of error relating to the sufficiency of the evidence in the indecency with a child convictions. In all convictions, appellant asserts numerous points of error concerning extraneous offense testimony. Finding no merit in any of appellant's contentions, we affirm the judgment of the trial court.
Appellant was a third grade teacher and a boy scout troop leader. The complainants are T. M., B. Y., and T. H. The complainants are boys, ages nine to twelve; all are former students of appellant and T. M. was also a member of appellant's boy scout troop. We initially review the testimony of the three complainants, and of the appellant. T. M., the complainant in conviction I, testified that he went to appellant's house for a boy scout meeting, although once he got there he learned that no boy scout meeting would be held. T. M. testified that appellant called him into a bedroom and told him to disrobe. Appellant also disrobed and the following occurred:
Q. Okay. Now, once he took off his clothes, what did he do?
A. He laid on top of me.
Q. He laid on top of you?
A. Yes.
Q. Did he say anything to you when he laid on top of you?
A. No, not really.
Q. Okay. Now when he laid on top of you, did any part of his body touch any part of your body?
A. Yes.
Q. What part of his body touched your body?
A. His private section.
Q. His private section?
A. Yes.
Q. What is his private section, what was that?
A. His penis.
Q. His penis?
A. Yes.
Q. Okay. Where did you hear that word penis from?
A. I took this class when I was in the fifth grade.
Q. Okay. What kind of class was that?
A. Sex class.
Q. Okay. And what did that sex class teach you? Did it teach you different parts of the body?
A. Yes.
Q. Had you heard the word penis before you took that class?
A. No.
Q. So did they tell you that your private section is your penis?
A. Yes.
Q. So was that the part of Mr. McGrew's body that touched you?
A. Yes.
Q. Where did his penis touch you?
A. On mine.
Q. On your what?
A. Penis.
Q. On your penis?
A. Yes.
Q. Was that skin to skin contact?
A. Yes.
Q. Did you have anything between your penis and his penis?
A. No.
Q. Meaning, did you have any kind of clothing on or any kind of sheet or anything like that?
A. No.
Q. Now, when his penis touched your penis, do you remember what he did, whether or not he moved around or did he stay still?
A. He moved around.
Q. Okay. When you say he moved around, was he moving around in a circle or was he moving up and down?
A. Up and down.
T. M. also testified that appellant fondled him on a near weekly basis in the classroom. T. M.'s testimony regarding the classroom incidents was similar to B. Y.'s testimony, which we consider presently.
B. Y., the complainant in conviction II, testified that during class he did not understand an assignment and went to appellant's desk for help. Appellant's desk was situated off to the side of the classroom so that the students' desks did not face the teacher's desk. B. Y. testified as follows:
Q. Okay. And then, what did he do after he did that?
A. He put his hand in my clothes.
Q. He put his hand in your clothes. Where about in your clothes, Sweetheart, in your clothes?
A. On my private part.
Q. On your private part. Do you know what your private part is?
A. No.
Q. What did do you use your private part for?
A. To use the restroom.
* * * * *
Q. What do you use the restroom for, do you tee-tee out of your private part, or do you do something else out of your private part?
A. Tee-tee.
Q. You tee-tee. So where you tee-tee, that is where he touched?
A. Yes.
Q. Okay. What did he touch your private part with?
A. His hand.
Q. His hand. When he touched it with his hand, did he just touch it or did he move it around?
A. Moved it around.
B. Y. further testified that appellant told him he "tested" boys like that every year; that appellant cautioned B. Y. not to tell others of the incident; and that five classmates witnessed the occurrence.
T. H., the complainant in conviction III, testified that appellant called him up to his desk and the following occurred:
Q. What did he do to you, what was first thing he did to you?
A. He told me to--he said "get down on your knees."
Q. He told you to get down on your knees?
A. Yes.
Q. After he told you to get down on your knees, what did he do?
A. Unzipped my pants.
Q. He unzipped you're (sic) pants?
A. Yes.
Q. Then what did he do?
A. Played with me.
Q. How did he play with you, what do you mean by that?
A. Going inside your pants.
Q. Did he go inside your pants?
A. Yes.
Q. Okay. What did he go inside your pants with, what did he use to go inside your pants?
A. Hands.
Q. His hand?
A. Yes.
Q. Okay. And what did he do when he went inside your pants with his hands?
A. Played with you.
Q. Okay. Where did he have his hands?
A. In my private place.
Q. On you private place. Do you have another name for private place?
A. No.
Q. Do you know what your private place is?
A. Yes.
Q. What do you use your private place for?
A. To use the bathroom with.
Q. Okay. When you say use the bathroom, what come out of your private place?
Does tee tee come out of your private place or does something else come out of your private place.
A. Tee tee.
Q. Okay. Now, so the private place where tee tee comes out, is that where he had his hand?
A. Yes.
Q. And, when he put his hand there, did he just hold it there, or did he move it around?
A. Moved it around.
Q. Okay. Do you remember if he was moving it in a circular motion or was he moving it up and down?
A. Up and down.
T. H. further testified that he was invited to spend the night at appellant's house where he could play Atari games; that appellant wanted to give T. H. a bicycle; that appellant cautioned him against telling others; that one classmate, A. L., witnessed the fondling incident; and that he had witnessed appellant fondling A. L.
Appellant took the stand in his own behalf. He denied ever molesting a child and stated that if a child was ever touched, it was not done for sexual gratification. FN:2
At this point we address appellant's sufficiency of the evidence points. FN:3 Appellant asserts that the evidence was insufficient to support convictions II and III. FN:4 Appellant asserts that the State did not establish that any contact he may have had with B. Y. and T. H. was made with the intent to arouse or gratify the sexual desire of appellant. TEX. PENAL CODE ANN. § 21.01(2) (Vernon 1989).
In considering the sufficiency of the evidence the standard of review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, (1974). The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony; the jury is entitled to accept one version of the facts and to reject another. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Conflicting evidence is not enough to warrant overturning a jury verdict. Thomas v. State, 458 S.W.2d 470 (Tex. Crim. App. 1970). The requisite intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
Appellant argues that his intention was to provide the boys with a positive role model of how a professional behaves and to help the boys rise out of poverty and become leaders. We quote from appellant's brief:
In the process of his teaching them to be leaders, Appellant tested whether they were, could be, or would become men. By touching these boys, who had no father figure and might sexually deviate toward men, Appellant sought to prove to them that, though deviating toward homosexuality, or bisexuality, they could still be men. The prosecuting attorney asked, for example, one of her extraneous witnesses, "Did he say anything to you . . . when he did those thing to you?" [C. P.] explained what Appellant said when Appellant touched [C. P.'s] penis: "'[W]hen a man touches you on your privates it doesn't make you a sissy.'" Thus, through "testing" these boys, that is, by touching their penis, Appellant aimed to teach the boys, in spite of a possible deviation toward homosexuality or bisexuality, that such boys could be men and not "a sissy." The evidence therefore is compelling that, through touching the boy's penis, Appellant was training and teaching the Complainant. His touching of [T. H.'s] penis was part and parcel of his teaching the boy, in class, in the Boy Scout organization, and in life, to be and become a man. The touching was not done to arouse or gratify Appellant's sexual desire. (Emphasis in original).
Both B. Y. and T. H. described in detail the manner in which appellant fondled them. The jury, as fact finder, was free to disbelieve appellant's argument that any contact was for a selfless purpose. There was sufficient evidence from which the jury could infer that appellant touched the penises of B. Y. and T. H. with the intent to arouse or gratify his sexual desire. Point one in convictions II and III are overruled.
All of appellant's remaining points of error, except the last one, concern some aspect of extraneous offense testimony. Appellant either complains that testimony should not have been admitted, or he complains that the court erred in instructing the jury concerning the testimony. General principles of law regarding extraneous offenses are well established. Evidence of an extraneous offense is admissible only if it is relevant to a material issue in the case and if its probative value outweighs its prejudicial effect. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). Due deference is given the trial court's discretion in admitting the extraneous transaction. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987).
The State presented one extraneous offense witness in its case in chief, and thirteen such witnesses in its rebuttal to appellant's case in chief. We first consider the points of error complaining of the extraneous testimony elicited during the State's case in chief.
Appellant complains that: (1) the State was allowed to question T. H. (the complainant in conviction III) about an extraneous offense committed upon A. L., a nine-year old boy, and a former student of appellants'; and (2) A. L. was subsequently allowed to testify about the extraneous offenses committed upon him. The State did not seek to elicit any evidence on direct examination regarding the A. L. extraneous offense. The matter was first broached during the cross-examination of T. H., when the following occurred:
Q. Are you the only one that Mr. McGrew had to get on his knees?
A. No.
Q. Who else got on his knees?
A. [A. L.]
Q. Anybody else?
A. No.
T. H. testified on redirect examination about the A. L. extraneous offense. A. L. was then called to the stand. He testified that appellant called him up to his desk and fondled him; that this happened numerous times throughout the school year; and that sometimes he was standing and sometimes he was on his knees.
Evidence which is used to fully explain a matter opened up by the other party need not be ordinarily admissible. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977). Both T. H.'s testimony on redirect examination and A. L.'s testimony explained T. H.'s testimony on cross-examination. Appellant opened the door to the extraneous offense testimony. See, e.g., Berry v. State, 596 S.W.2d 857, 862 (Tex. Crim. App. 1980). The testimony was relevant to a material issue in the case, and its probative value outweighed its prejudicial effect. Thus the trial court did not abuse its discretion in allowing the testimony. Points one and two in conviction I and points two and three in convictions II and III are overruled.
Next we consider the extraneous offense witnesses who testified during the State's case in rebuttal. In thirteen separate points of error, appellant asserts that the court erred in admitting the following: six boys testified that appellant fondled them at appellant's classroom desk; three boys testified that appellant fondled them in the classroom plus each visited appellant at his house and appellant and the individual boys would take off their clothes, lie down on appellant's bed, and place their penis between each other's legs; the mother of one of the boys testified that her son related the incident to her; two female students testified that they witnessed a classroom fondling incident; the mother of one of the girls testified her daughter related the incident to her.
Appellant argues that the extraneous offense testimony related only to his propensity to commit a sex crime, and evidence of an extraneous sexual offense between defendant and a third party is not admissible to show propensity. The State contends that the extraneous offense testimony was admissible, among other reasons, to rebut the false impression created through appellant's direct examination testimony that he had never molested a child and was not the type of man who would molest a child; FN:5
The State called the extraneous offense witnesses on rebuttal, after appellant testified on direct examination as follows:
Q. John, have you ever, under any circumstances, ever in your life, touched a kid for the purpose of sexual gratification?
A. Never, have I ever touched a child in my life time for the purpose of sexual gratification. I think I have a pretty satisfying sex life as a adult. There is no need to touch a child.
If a child was ever touched, which I can't even imagine that, it was not done for sexual gratification.
I still cannot get used to that idea of just thinking from what I've heard that a man can do such a thing. I cannot get over that.
Now just to be short with you, no, I have never touched a child for sexual gratification, no, never in my life.
* * *
The stones that have been thrown, I don't know why. But, I have never molested a child, it's never been in my mind to do so and, I cannot even understand how a man can even receive sexual gratification like what I have heard here on this witness stand in this courtroom since I've been in here. That is just not me, I'm sorry. That is just not my goal, that just doesn't fit my personality period.
Extraneous offense testimony on rebuttal may be admissible to discredit a defensive theory. For example, in Ballard v. State, 464 S.W.2d 861 (Tex. Crim. App. 1971), the Court of Criminal Appeals noted that extraneous offense evidence impeached defendant's assertion that "he did not mess around with little children." Id. at 862. Here, the appellant testified that he never molested any children and was not the type of person who would do so. Once appellant sought to create this impression, the State was entitled to present controverting evidence. Boutwell v. State, 719 S.W.2d 164, 179 (Tex. Crim. App. 1986); TEX. R. CRIM. EVID. 404(a)(1). The testimony was relevant to a material issue in the case, and its probative value outweighed its prejudicial effect. Thus, the trial court did not abuse its discretion in allowing the extraneous offense testimony. Points three through fifteen in conviction I, and points four through sixteen in convictions II and III are overruled.
Appellant asserts that the trial court erred in giving the following limiting instruction on the extraneous offense evidence:
You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses, if any, other than the offense, if any, alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense, if any were committed, and even then you may only consider the same in determining the credibility of the defendant in his testimony, or in determining the motive, intent, scheme or design, if any, of the defendant, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.
Appellant's objection to the charges was as follows:
[DEFENSE COUNSEL]: Judge, we will lodge an objection to the allowance of the extraneous offense under the instruction, it indicates the jury can consider it for impeachment or for motive, scheme, design, or plan. I think the implication there is to say they can consider a propensity to commit the offense.
The only information presented by the State in presenting those extraneouses was for impeachment purposes and we object to the second part of the Charge.
Appellant's objection asserted that it was error to allow the jury to consider extraneous offense evidence for "motive, scheme, design, or plan" because that instruction served as a subterfuge to allow consideration of propensity evidence. The Court of Criminal Appeals has indicated that the common plan or scheme exception should not be used as a pretext for allowing propensity type evidence. Boutwell v. State, 719 S.W.2d at 181. However, appellant's point of error does not concern the reason the testimony was admitted in the first place - it concerns a jury instruction. The instruction expressly precluded the jury from considering the extraneous offense evidence for any purpose not enumerated. We presume that the jury followed the court's instruction. Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1975). We hold that appellant's objection had no merit; thus, the trial court did not err in overruling it. Point sixteen in conviction I and point seventeen in convictions II and III are overruled.
Appellant claims that the following jury instruction enabled the jury to consider unadjudicated offenses in assessing punishment:
You are instructed that in assessing the defendant's punishment, which you will show in your verdict, you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case and the law as submitted to you in this charge and the charge heretofore given to you by the Court herein.
Appellant lodged no objection to the charge. Unobjected-to jury charge error is only reversible if it is egregiously harmful such that it is calculated to deny the defendant a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We do not view this charge to be egregiously harmful. It merely instructs the jury that all evidence may be considered. See Stewart v. State, 666 S.W.2d 548, 549 (Tex. App.--Dallas 1984, pet. ref'd). Point seventeen in conviction I and points eighteen in conviction II and III are overruled.
Next, appellant asserts that the State impermissibly referred to extraneous offense testimony in its closing argument at punishment stage. The following is the argument wherein appellant objected and his objection was overruled.
[STATE]: You have got three complainants who testified about what happened to them. You've got ten people who testified after the defendant testified, and he denied ever touching anybody. We brought them to tell you what he did to them.
[DEFENSE COUNSEL]: Judge, again, I'll object to arguing about items that do not concern the three people that are on trial.
We have already held that the extraneous offense evidence was admissible. Thus, the State's argument is merely a summation of the evidence. Darden v. State, 629 S.W.2d 46, 52 (Tex. Crim. App. 1982). Apparently, appellant is contending that unadjudicated offenses may never be mentioned during jury argument at the punishment phase, even if testimony concerning those offenses was admissible during the guilt/innocence phase of trial, and was a proper subject for closing argument at the guilt/innocence phase of trial. Appellant refers us to Article 37.07(3)(a) of the Texas Code of Criminal Procedure which concerns the admission of evidence of a defendant's prior criminal record after defendant has been found guilty and limits this evidence to final convictions. Article 37.07(3)(a) does not purport to cover offenses, whether or not they were final convictions, that were properly admissible during the guilt/innocence phase. Article 37.07(3)(a) is inapplicable. Point eighteen in conviction I and points nineteen in convictions II and III are overruled.
Lastly, appellant contends that the trial court erred in denying his motion for new trial based on the admission of the testimony of a counselor at the Dallas County Rape Crisis and Child Sexual Abuse Center. Appellant did not object to the testimony at trial; he asserted the argument for the first time in his motion for new trial. Exceptions to rulings on the admission or exclusion of evidence should be made during the course of the trial and cannot be raised for the first time on a motion for new trial. Chandler v. State, 157 Tex. Crim. 353, 248 S.W.2d 736, 737-38 (1952). Appellant has waived any error. Point nineteen in conviction I and points twenty in convictions II and III are overruled.
We affirm the judgment of the trial court.
JOHN WHITTINGTON
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01022.F
FN:1 In addressing points of error, cause No. 05-88-01022-CR, aggravated sexual assault, will be referred to as conviction I. Cause No. 05-88-01023-CR, indecency with a child, will be referred to as conviction II. Cause No. 05-88-01024-CR, indecency with a child, will be referred to as conviction III.
FN:2 More of appellant's testimony is set out on p. 15, below.
FN:3 Thus far we have only discussed the testimony of the three complainants and appellant. Nevertheless, our disposition of the sufficiency points is based on our review of the entire record. We will set out further testimony and evidence as subsequent points of error warrant.
FN:4 Appellant does not contest the sufficiency of the evidence in conviction I.
FN:5 The State also contends that the extraneous offense testimony was admissible: (1) to establish appellant's lack of credibility; (2) to establish appellant's intent to gratify his sexual desire through touching the boys; and (3) to establish appellant's identity as the true perpetrator of the charged offense. We need not address these contentions in order to dispose of this appeal.
File Date[01-02-89]
File Name[881022F]
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