CHARLES WAYNE DEMPSEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED AS MODIFIED; Opinion Filed August 5, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01090-CR
............................
CHARLES WAYNE DEMPSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-00202-UY
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OPINION
Before Justices Morris, Wright, and Moseley
Opinion By Justice Moseley
        A jury convicted Charles Wayne Dempsey of aggravated sexual assault of a child, a first degree felony, and assessed punishment at sixty years' confinement and a fine of $10,000. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008). In his first issue , Dempsey challenges the trial court's denial of his motion for mistrial because of an outburst at trial. Dempsey's second through fourth issues address the jury's request to have certain of the complainant's testimony read to it during deliberation. For the reasons that follow, we overrule Dempsey's issues, modify the trial court's judgment by correcting the “statute for offense,” and affirm the judgment as modified.
I. BACKGROUND
        In 2006, Dempsey was indicted for intentionally and knowingly causing the penetration of the sexual organ of Y.V., a child, by his sexual organ and, by acts and words, placing Y.V. in fear that death, serious bodily injury, and kidnapping would be imminently inflicted on her, and, further, by acts and words occurring in Y.V.'s presence, threatening to cause her death, serious bodily injury and kidnapping. The offense allegedly occurred in September 1997. At the time of trial, the complainant was twenty-five years old. She testified that, when she was sixteen years old, Dempsey forced her into his van as she was walking to work, drove them to a park, and sexually assaulted her.
        At the punishment phase, three other women testified that Dempsey either attempted or completed a sexual assault against them. Those assaults occurred in 1999 and 2002. One of the witnesses testified she was fifteen years old when Dempsey sexually assaulted her. Dempsey's former girlfriend testified Dempsey admitted to her in 2005 that he had committed two rapes.
II. OUTBURST AT TRIAL
        In his first issue, Dempsey contends the trial court abused its discretion by denying his motion for mistrial because of an emotional outburst from the complainant's husband-crying and sobbing-made during the guilt/innocence phase. Dempsey's complaint arises from the following, which occurred during the complainant's direct examination:
 
Q:
 
You said when the vehicle pulled up, it approached very rapidly.
 
 
 
A:
 
Yes.
 
 
 
Q:
 
Can you describe anything about that car or that vehicle for us?
 
 
 
A:
 
It was a van. It was light blue.
 
 
 
(Sound in the courtroom)
 
 
 
THE COURT:
 
One moment. You may proceed.
 
 
 
THE WITNESS:
 
Can I take a break, please?
 
 
 
THE COURT:
 
Sure. We will take a break.
 
 
 
[DEFENSE COUNSEL]:
 
Judge, we would ask the Court to instruct the jury with regards to the outburst.
 
 
 
THE COURT:
 
Ladies and gentlemen, if you would disregard the outburst made by the complainant's husband. We will take a break.
 
 
 
(The jury left the courtroom)
 
 
 
(Recess)
 
 
 
THE COURT:
 
This is on the record outside the presence of the jury. I have admonished the complainant's husband who was present during her testimony and had made an outcry of emotion during her testimony, and we had a break at that time and the jury was admonished to disregard that outburst. I told him if he is not able to control his emotions, he cannot be here in the courtroom. He has assured this Court that he will follow the Court's feelings as far as that is concerned.
                        [Defense counsel]?
 
 
 
[DEFENSE COUNSEL]:
 
Judge, we just ask that [complainant's husband] be removed from the courtroom based on the outburst. It was a prolonged bought [sic] of crying and sobbing. It was loud. It was very emotional, and members of the jury were looking over at him when it began. And you know, my concern is, you know - and I understand the Court has instructed the jury to disregard that - but kind of in the skunk in the jury box kind of thing, and we would just ask to kind of alleviate the harm that has been caused that the only way to alleviate that is to require [complainant's husband] to remain outside the courtroom during the remainder of his wife's testimony.
 
 
 
THE COURT:
 
I have admonished him - if you will interpret for me - that if he believes he cannot control himself, he needs to leave the courtroom. I do not want him to jeopardize this trial by any emotional outburst. So if he cannot do it, he needs to leave now. But I will allow him to stay during her testimony if he believes he can contain himself. But he must leave if he believes he cannot.
 
 
 
[DEFENSE COUNSEL]:
 
Judge, we would move for a mistrial at this time.
 
 
 
THE COURT:
 
Denied. Then the jury returned to the courtroom.
 
A.
 
Standard of Review and Applicable Law
 
        A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Id. Whether a given error necessitates a mistrial must be determined by examining the particular facts of the case. Id. We review the trial court's denial of a mistrial under an abuse of discretion standard. Id.
        The Fourteenth Amendment incorporates the essence of the Sixth Amendment right to trial by impartial, indifferent jurors whose verdict is based upon the evidence developed at trial. See Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996) (citing Holbrook v. Flynn, 475 U.S. 560, 567 (1986), and Irvin v. Dowd, 366 U.S. 717, 722 (1961)). Spectator conduct or expression that impedes normal trial proceedings will not result in reversible error unless an appellant shows a reasonable probability that the conduct or expression interfered with the jury's verdict. Id.; Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985).
        To do so, the appellant must show that external jury influence resulted in either actual or inherent prejudice. See Howard, 941 S.W.2d at 117. The test for such actual prejudice is whether jurors actually articulated a consciousness of some prejudicial effect; the test for inherent prejudice is whether “an unacceptable risk is presented of impermissible factors coming into play.” Id. (quoting Holbrook, 475 U.S. at 570). Inherent prejudice rarely occurs and “is reserved for extreme situations.” Id. (quoting Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir. 1988), cert. denied, 488 U.S. 1034 (1989)). Further, we presume the jury complied with the trial court's instruction to disregard. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). “Only offensive or flagrant error warrants reversal when there has been an instruction to disregard . . . . ” Id. See Brown v. State, 92 S.W.3d 655, 662 (Tex. App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex. Crim. App. 2003).
B.
 
Discussion
 
        Dempsey makes no argument of actual prejudice-i.e., that the jurors actually articulated a consciousness of prejudicial effect flowing from the complainant's husband's outburst. Instead, he argues inherent prejudice is shown by the fact that he received a sixty-year sentence, which he argues is “tantamount to a maximum sentence.” See Tex. Penal Code Ann. § 12.32 (Vernon 2003) (providing first degree felony punishment of life or any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000).
        However, the jury heard evidence at punishment that Dempsey committed other rapes, one of them of a fifteen-year-old girl. We cannot conclude from the jury's sentencing verdict that the complainant's husband's tearful outburst during the guilt/innocence stage of the trial presented such an unacceptable risk of influencing the jury's verdict that a mistrial was necessary. See Howard, 941 S.W.2d at 117 (no inherent prejudice when twenty uniformed police officers were spectators in back of courtroom in trial of appellant for murder of state trooper); Landry, 706 S.W.2d at 112 (no inherent prejudice when trial interrupted by emotional verbal outbursts by victim's family during testimony and argument).
        Moreover, the trial court instructed the jury to disregard the husband's outburst, and we presume the jury complied with the trial court's instruction to disregard. See Wesbrook, 29 S.W.3d at 116; Brown, 92 S.W.3d at 662. Reviewing the record, we cannot say the trial court abused its discretion in denying Dempsey's motion for mistrial. We overrule Dempsey's first issue.
III. JURY'S REQUEST FOR TESTIMONY
        Dempsey's second through fourth issues address the trial court's answering the jury's requests for testimony during its guilt/innocence deliberation. The jury sent two notes. The first note requested “the transcript of [Y.V.]'s testimony.” In a written response, the court said, “In response to your question, you must be in dispute over a specific point as it pertains to a witness's testimony.” The jury then sent out a second note, which said: “Could we please have the testimony from [Y.V.] about 'fear for her life' and her thoughts about never seeing her son again.” The trial court announced the communication in court, indicated that it had found a portion of Y.V.'s testimony on direct examination that addressed the specific question, and asked if there were any objections. Defense counsel stated:
 
Yes, Your Honor. Your Honor, since the note is phrased exactly as it is in regards to fear, her thoughts about fear for her life and then the additional thoughts of fear for her son or whatever else, we feel that based in conjunction with the previous note, essentially what the jurors are asking for is what evidence is there pertaining to threats of either death, serious bodily injury or kidnapping towards the complaining witness, which makes it an aggravated offense as opposed to a sexual assault.
 
 
 
        Based on that, we would ask that all the cross and direct examination pertaining to the threats, the lack of threats, lack of weapons, lack of conversation by the defendant pertaining to any threats, anything along those lines, be included in the Court's response to the jurors. We believe that is encompassed by the note and by the request from the jurors.
 
        The court denied the request, and answered the jury's inquiry by sending part of a page of the reporter's record containing the following question and answer:
 
Q:
 
[Y.V.], you told the members of the jury earlier when he did this, you were very nervous. What were you nervous about? What did you think was going to happen to you?
 
 
 
A:
 
I was scared that he was going to kill me, that he would hurt me and just threw [sic] me off somewhere. I was very scared. I was thinking of my son.
 
A.
 
Applicable Law         The code of criminal procedure provides that, in a court of record,
if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other; . . . .
 
Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006). The manner in which the trial court determines whether there is a factual dispute between the jurors is left to the court's sound discretion. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005); Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App. 1994). The trial court must interpret the communication, decide, in its discretion, what sections of the testimony will best answer the query, and limit the testimony accordingly. Iness v. State, 606 S.W.2d 306, 314 (Tex. Crim. App. 1980); Brown v. State, 831 S.W.2d 847, 850 (Tex. App.-Dallas 1992), aff'd, 870 S.W.2d 53 (Tex. Crim. App. 1994). The test for abuse of discretion is “whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.” Howell, 175 S.W.3d at 792 (citation omitted).
B.
 
Determination Whether Jury Was in Dispute
 
        In his second issue, Dempsey contends the trial court abused its discretion under article 36.28 because it had testimony read to the jury without determining whether the jury was in dispute. The record shows that Dempsey did not object to the trial court's reading testimony to the jury without determining whether the jury was in dispute. Therefore, this challenge has not been preserved for our review. See Tex. R. App. P. 33.1(a)(1)(A); Hollins v. State, 805 S.W.2d 475, 477 (Tex. Crim. App. 1991); Randon v. State, 107 S.W.3d 646, 649 (Tex. App.-Texarkana 2003, no pet.). We resolve Dempsey's second issue against him.
        In his fourth issue, Dempsey argues he was denied effective assistance of counsel because of counsel's failure to object that the form of the jury's question did not comply with article 36.28, specifically, without a determination that the jury was in dispute. Dempsey has the burden to show by a preponderance of the evidence that: (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms; and (2) the deficiency prejudiced the defendant, that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.
        A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under article 36.28. Howell, 175 S.W.3d at 792; Robison, 888 S.W.2d at 480. A trial court may clearly inform the jury that testimony would be read back only in the event of a dispute after each request for information. Here, the trial court's first response to the jury's request told the jury it had to be in dispute over a specific point as it pertained to Y.V.'s testimony. The subsequent note narrowing the scope of the requested testimony supports an inference by the trial court of disagreement among the jury regarding Y.V.'s testimony. See Howell, 175 S.W.3d at 792; Robison, 888 S.W.2d at 481. Considering the jury's second note in the context of the exchange between the jury and the court, it is reasonable to infer that jury members disagreed among themselves regarding the requested witness's testimony. Howell, 175 S.W.3d at 792; Robison, 888 S.W.2d at 481. Accordingly, there was no error by trial counsel in failing to object to the form of the jury's question as to lack of dispute. Because the record does not support Dempsey's argument that counsel's performance was deficient in that it fell below the prevailing professional norms, Dempsey has failed to meet his burden to show the first prong of an ineffectiveness of counsel claim. See Thompson, 9 S.W.3d at 812. We resolve Dempsey's fourth issue against him. C.
 
Trial Court's Answer to Jury's Request
 
        In his third issue, Dempsey contends the trial court abused its discretion in refusing to answer fully the jury's question. According to Dempsey, the trial court's answer was “truncated” and the jury's question required the inclusion of the complainant's testimony during cross-examination regarding fear for her life.
        The jury requested the complainant's testimony about “'fear for her life' and her thoughts about never seeing her son again.” The testimony read to the jury was responsive to the jury's specific and limited request. See Rodriguez v. State, 995 S.W.2d 876, 878 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (no abuse of discretion when trial court read only direct testimony on specific issue requested by jury); Brown, 831 S.W.2d at 851 (no abuse of discretion when trial court read testimony necessary to answer jury's inquiry without creating “more confusion in the jury's mind”). We cannot say the trial court abused its discretion in responding as it did to the jury's second note. See Howell, 175 S.W.3d at 792. We resolve Dempsey's third issue against him.
IV. CONCLUSION
        The trial court's judgment incorrectly states the statute for the offense as section 22.011 of the penal code; we modify the judgment to show the correct statute for the offense is section 22.021. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd) (en banc). Having overruled Dempsey's four issues, we affirm the trial court's judgment as modified.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061090F.U05