JAMES EARL BROWN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01211-CR
............................
JAMES EARL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F02-02116-L
.............................................................
OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
        A jury convicted James Earl Brown of aggravated sexual assault of a child and assessed punishment at ten years in prison, probated for ten years. In six issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred in denying his motion for mistrial after the prosecutor impermissibly referenced one of the previous trials of the present offense, and (3) the trial court erred in excusing a juror in violation of his constitutional and statutory rights. We affirm.
        S.B. was twenty-five years old at trial. She testified that in 1992, her mother, Joyce Brown, married appellant and, one week later, she went to live with them in Dallas. S.B. was ten years old at the time. Within a couple of months, appellant began fondling her when he tucked her in at night. In February 2003, S.B.'s brother was born. That night, while S.B.'s mother was in the hospital giving birth, S.B. said appellant made her sleep with him. Appellant began “rubbing” on her and then pulled down his shorts and penetrated her vagina with his penis. Afterward, he grabbed a white towel, put it around his penis, and then warned that she had “better not tell anybody or else.” S.B. said she tried to fight off appellant, but it was “no use” because she was so small.
        Over the next two years, appellant sexually assaulted her four or five more times. After the first couple of times, S.B. said she knew what was going to happen because appellant would put down a towel, always white, and then sexually assault her. As in the first incident, appellant would then wrap the towel around his penis. Sometimes she had bruises around her wrist from appellant holding her hands so tightly over her head. The assaults, she said, were always “very painful.”
        S.B. said the abuse ended when appellant was nearly caught by her mother. S.B. said she was lying in bed when appellant came in and said he was going to get in bed with her until she went to sleep. Instead, he removed his shorts and underwear and assaulted her. During the assault, the telephone rang. Appellant put on his shorts, told S.B. not to move, and went to answer the phone. About ten minutes later, her mother came into the room, and saw S.B. crying. Her mother pulled back the cover and saw that S.B. was not wearing underwear and appellant's underwear were on the bed. When her mother asked what was going on, S.B. said she did not directly answer because appellant had threatened her and because she believed her mother “would know what happened just by what she saw.” S.B. said there is still a rift between them because she believed her mother did not protect her.
        S.B. told no one about the abuse until four years later when she confided in her best friend Toni. Although it was embarrassing, S.B. said she trusted Toni and did not think she would “judge” her. She asked Toni not to tell anyone. A couple of years later, in 2001, S.B. told the mother of a friend with whom she was especially close, “Mama Doris,” because she wanted her to understand why she disliked appellant. A year later, she told her mother and reported the abuse to the police. Mama Doris went with her when she made the police report.
        With respect to her relationship with appellant, S.B. testified she initially thought he was a “great person.” After the abuse began, she said she tried to stay away from him. She described appellant as very “controlling” and said she did not have much of a social life because appellant did not allow her “to go very many places at all.” As for her mother, S.B. said she was also controlled by appellant and was the peacemaker in the family. She acknowledged that she hated appellant during those years.
        Both Toni and Doris Kolokotsas corroborated S.B.'s testimony that she told them about the abuse. Toni said when she was in eleventh grade, S.B. called her and said she “had something to get off her chest.” S.B. came to her house and while the two were washing a car, Toni asked her what she wanted to talk about. S.B. became quiet and “acted like something was really bothering her.” When Toni asked what was it about, S.B. told her about appellant. Toni asked if appellant raped her, and S.B. said yes. S.B. did not go into details and asked Toni to promise not to tell. Toni said she kept that promise until 2002, when she told S.B.'s relatives who were worried about her.
        Kolokotsas testified she and S.B. had a close relationship. One day after S.B. had graduated from high school, S.B. was upset and crying. Kolokotsas, knowing that S.B. hated appellant, asked if he had molested her. S.B. said he did. Kolokotsas did not press S.B. for details. Some time later, Kolokotsas took S.B. to the police station.
        S.B.'s mother, Joyce, testified she learned in 2002 that appellant had abused S.B. She said she was devastated and, with two church leaders, confronted appellant. She said appellant responded that he “was never around her” but did not specifically deny abusing her. Appellant threatened to divorce Joyce if the case went to court and told her she could not survive without him because she was lazy and had no marketable skills. Joyce gave a statement to the police and then moved in with S.B. A few months later, she moved back in with appellant and then wrote a letter to the grand jury recanting her police statement. Joyce testified she wrote the letter because “everybody made me feel like I was wrong for saying I believed my daughter and that I should be supportive of him.” She said she regretted writing the letter. Joyce continued to live with appellant until May 2006. At the time of trial, appellant and Joyce were divorced.
        John Cade, a clinical social worker and licensed professional counselor, testified he had five sessions with S.B. from April to June 2007. During his sessions with S.B., Cade learned S.B. had an aversion to things that were white, such as towels, shorts, and plates, because she said when appellant would assault her, he would clean up with a white towel. Cade explained an “aversion” means someone is trying to avoid something, and there is usually an impetus for aversion.         Wynne Mittledorf, a therapist at the Dallas Children's Advocacy Center, testified as an expert on child abuse issues. Mittledorf, who has treated children and adults who were abused as children, had not counseled S.B. Mittledorf said it was very common for people to wait until they are adults to tell anyone they had been sexually abused as well as to first tell a friend rather than an adult.
        Mittledorf also explained that not all mothers are supportive of their children who have been sexually abused and might not do anything to protect a child, even if they see signs of abuse. If the perpetrator is the money maker or decision maker, the mother may be too overwhelmed to be supportive or to believe the child. Even mothers who understand what happened may go back to the perpertrator for financial reasons.
        In his defense, appellant presented three character witnesses. Each met appellant in 1997 or 1998 through a basketball program offered by appellant. John Boog-Scott said appellant had a great reputation and he had never heard anyone have a question or concern about appellant regarding the safe and moral treatment of children. Jesse Townsend said appellant was a good mentor and had good ethics, and he had never heard appellant treating any children wrong. Bob Harrison said appellant had an excellent reputation in the community for morals and character and safety with children.
        In his fifth and sixth issues, appellant contends the evidence is legally and factually insufficient to support his conviction. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determination).
        Appellant first argues there was no DNA, forensic, or physical evidence to support S.B.'s allegations. However, no requirement mandates such evidence be presented. Moreover, given the abuse occurred several years before S.B. told anyone, it is understandable that no such evidence was produced.
        Appellant's remaining arguments are directed at S.B.'s credibility. He complains her statement to police did not mention the first sexual assault occurred when her brother was born, nor did it describe the incident where her mother found appellant's underwear in S.B.'s bed; when asked by the grand jury “how this started,” S.B. did not testify about the incident when her brother was born; S.B.'s mother testified appellant was with her the night she gave birth and S.B. spent the night with another adult; S.B.'s mother did not recall finding appellant's underwear in S.B.'s bed; while S.B.'s mother was initally supportive and corroborative of S.B.'s allegations, she later recanted her statement to police in a letter to the grand jury; and S.B. told the police the last incident occurred in 1995 but testified at trial the incident occurred in 1994.
        Beginning with complaints about S.B.'s prior statements, S.B. explained she did not include details about specific incidents or dates in her police statement because the police told her to focus on the actual acts committed (what area of appellant's body touched hers) but did not tell her to give specifics as to exact times or dates. As for the lack of detail in her grand jury testimony, S.B. said she answered the questions she was asked.
        As for the testimony of S.B.'s mother, some of it corroborated S.B.'s testimony and some did not. In particular, she did not recall finding appellant's underwear in S.B.'s bed, but she did testify appellant stayed at home with her daughter the night following the birth of their son. She also acknowledged recanting her statement to police, but recanted her recantation at trial. Whether Joyce Brown was a completely truthful witness, and what motives she may have to distort any truths, was a matter for the jury.
        With respect to appellant's complaint that S.B. told police the last incident occurred in 1995 but testified it was in 1994, any such discrepancy was a credibility determination for the jury. To the extent he complains the evidence was rendered insufficient because the indictment alleged September 15, 1995 as the date of the offense, we also disagree. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) (“It is well settled that the “on or about” language of an indictment allows the state to prove a date other than the one alleged as long as the date proven is anterior to the presentment of the indictment and within the statutory limitation period.”).
        Finally, appellant relies on defense witness testimony regarding his “great reputation” in the community and his role in the youth basketball community. None of these witnesses, however, had any knowledge of the facts of this case or even knew appellant during the time frame of the allegations. S.B. testified appellant was a different person publicly than he was privately, and her mother agreed. Appellant may well be a talented basketball coach. That does not, however, disprove S.B.'s testimony that she was sexually assaulted.
        S.B. testified appellant penetrated her vagina with his penis. She gave specific details of two such incidents. Years later, she told two different witnesses, and both of those witnesses corroborated her testimony, including the circumstances in which they were told. This evidence was legally sufficient to support the conviction. From a factual sufficiency viewpoint, the State's evidence was not so obviously weak that a conviction is clearly wrong and unjust, nor was the evidence, when considering conflicting evidence, against the great weight and preponderance of the evidence. We overrule the fifth and sixth issues.
        In his first issue, appellant contends the trial court erred in denying his motion for mistrial after the prosecutor referenced a previous trial of this offense in violation of the court's limine ruling prohibiting any such reference.
        The record shows appellant had been tried twice previously for this offense, but each time the jury could not reach a unanimous decision. Before this trial started, the trial court instructed everyone involved to use the word “hearing,” not “trial,” if they needed to reference a prior trial. The court warned that any violation could result in contempt.
        During the cross-examination of S.B., defense counsel questioned her about her testimony on November 3, 2005 and referred to a transcript from that date. On the State's redirect of S.B., the following occurred:
 
[PROSECUTOR]: [Defense counsel] had mentioned on cross examination a hearing that was had on November the 3rd of 2005. Do you remember that? And I want to direct your attention to that 176- page transcript that she showed you; okay?
 
 
 
[S.B.]: Correct.
 
 
 
[PROSECUTOR]: That trial - or that hearing that we had, that was where you testified and you were asked questions; is that right?
 
        Defense counsel immediately asked to approach the bench, and the jury was removed from the courtroom. Defense counsel then objected that the prosecutor had used the word “trial” in violation of pretrial instructions and moved for a mistrial. The prosecutor acknowledged the “slip up” but said it was not intentional and argued an instruction could cure any error. The trial court sustained appellant's objection but denied the motion for mistrial. Once jurors returned to the courtroom, the trial court instructed them as follows:
 
Members of the jury, I've sustained an objection made by the Defense out of your presence. Based upon me sustaining that objection, I'm instructing you to disregard the last question asked of [sic] Mr. Birmingham. You cannot consider the question nor any answer to the question as evidence in this case for any purpose whatsoever.
 
        We review the denial of a motion for mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). To constitute an abuse of discretion, the trial court's decision must fall outside the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). A mistrial is appropriate for only “a narrow class of highly prejudicial and incurable errors” and may be used to end trial proceedings when the error is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” Wood, 18 S.W.3d at 648; Hawkins, 135 S.W.3d at 77. A mistrial due to an improper question is required only when “the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Wood, 18 S.W.3d at 648. It is within the discretion of a trial court to deny a mistrial when an appropriate instruction would cure any resulting harm. Hawkins, 135 S.W.3d at 77; Wood, 18 S.W.3d at 648.
        The effectiveness of a curative instruction is determined on a case-by-case basis. Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.-Dallas 1993, pet. ref'd). Courts have relied on various factors to determine if an instruction to disregard cured the harm, including the nature of the error, the persistence of the prosecutor in commiting the error, the flagrancy of the violation, the particular instruction given, the weight of incriminating evidence, and the harm to the accused as measured by the severity of the sentence. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).
        We do not condone the prosecutor's failure to follow the trial court's explicit instruction not to use the word “trial.” Nevertheless, considering the above factors, we conclude the instruction cured any harm. We note the record shows that S.B. and her mother were repeatedly asked questions about testimony at prior “hearings,” and nothing suggests the jury believed the prosecutor's use of “trial” in one question was anything more than simply using the wrong word. The prosecutor immediately corrected himself, and the error was not repeated. The record is clear the use of the word was not intentional (both the judge and defense counsel stated on the record they believed it was a “slip of the tongue”), and the trial court clearly instructed the jury to disregard the question. The weight of the State's evidence, detailed above, was significant, and the jury recommended the ten-year sentence be probated, one of the lightest sentences possible. Under the circumstances, we cannot conclude the State's “slip of the tongue” fell within the narrow class of errors that are so inflammatory that the instruction was not likely to prevent the jury from being unfairly prejudiced against the defendant. We overrule the first issue.
        In his second, third, and fourth issues, appellant complains the trial court erred in excusing a juror as disabled in violation of statutory and constitutional rights.
        At the conclusion of the first day of testimony, juror Yulonda Fletcher expressed to a bailiff a concern that she recognized a person sitting in the courtroom. The trial court had Fletcher brought in and told her the person was not a witness. The court asked Fletcher if it would affect her ability to be fair, and Fletcher said it was “distraction” because “I'm looking at someone that I know I went to church with.” Fletcher identified the woman as “Gloria.” When asked if the distraction meant she could not continue as a juror, Fletcher said, “I would hope I can. I mean, I'm listening and I'm trying to be attentive.” When asked if the woman's presence would prevent her from being fair and impartial, Fletcher said, “Not at this point. It's just uncomfortable because I don't know the relationship -.” Fletcher added that she wondered why the woman was attending the trial. The trial court told Fletcher to “go about her business” and not to talk to the woman.         The next morning, before testimony began, the bailiff notified the trial court Fletcher had again expressed concern. In a second hearing, the trial court asked Fletcher to explain what she meant by distracted. Fletcher said although she knew she was supposed to be focusing, she was wondering what the woman was doing at the trial and how she knew “him,” apparently referencing appellant. Fletcher said she did not know if she would remain distracted if the woman was not in the courtroom and said she was just “shocked to see her.” Fletcher also surmised the woman was related to someone, otherwise she would not be taking off work to attend the trial. Fletcher asked if there was an alternate to take her place, and trial court said no. When asked if she would automatically believe what the woman said over other witnesses, Fletcher said she was a nice lady, “so why would she lie?” Fletcher also said she had told other jurors she recognized the woman and she had discussed the woman with her husband the night before. The trial court then had Fletcher step out, and when she returned, the following occurred:
 
[TRIAL COURT]: . . . You said you were distracted yesterday and I don't remember exactly when that woman came in, but were you still able to listen to the testimony after she came in?
 
[JUROR]: I heard some - I mean, I heard most of it but I will still wondering, why is she here.
 
 
 
[TRIAL COURT]: Were you distracted to where you didn't hear part of the testimony yesterday?
 
 
 
[JUROR]: I think I heard most of it. I would say I heard most of it.
 
 
 
[TRIAL COURT]: Like I said a moment ago, the main thing is both sides are entitled to a fair impartial jury. Can you still be an impartial juror in this case after seeing that woman sit on the Defendant's side of the room?
 
 
 
[JUROR]: Judge, I would suspect I could. I mean, I just -
 
 
 
[TRIAL COURT]: Do you remember when we were talking to all the jurors and I told them, “I've got to make you say yes or no”?
 
 
 
[JUROR]: Yes or no.
 
 
 
[TRIAL COURT]: You're the only one that knows. I just want you to search inside your heart and see whether or not you're so distracted that you can no longer be a fair and impartial juror or whether -
 
 
 
[JUROR]: I'm uncomfortable.
 
 
 
[TRIAL COURT]: - you can set that aside?
 
 
 
[JUROR]: I'm uncomfortable, highly uncomfortable. Now, whether or not I'm competent to actually do the task - I'm uncomfortable, Judge. That's all I can say.
 
 
 
[TRIAL COURT]: Is that going to affect your verdict? Just because she was in here, I mean, is that going to affect your verdict in this case? Those are really the questions that we need answers to.
 
 
 
        Can you still be fair and will it affect your verdict one way or the other? I don't care which way. I just want to know if the presence of that woman is going to affect your verdict either way in this case?
 
 
 
[JUROR]: Probably the presence of her and especially if she's going to be a witness, it might, considering I've interacted with that woman.
 
 
 
[TRIAL COURT]: Okay. Why don't you go back to the jury room and I'll talk some more to the lawyers.
 
        After questioning Fletcher, the trial court questioned each juror individually to determine whether Fletcher had tainted the jury. Of the eleven jurors, ten had heard something about Fletcher recognizing a woman in the courtroom. However, none said it would impact his or her ability to be fair in the case. After questioning the jurors, the trial court determined the jury had not been tainted by Fletcher.
        The trial court noted the woman in question was appellant's sister. Further, the prosecutor stated he intended to put the woman on the State's witness list to testify to the relationship between appellant and Joyce, the relationship between as appellant and S.B. “as well as recent events relevant to punishment.         The trial court ruled Fletcher was disabled, saying “because of her emotional distraction and what I heard this morning, I do not believe that she is capable of continuing as a juror.” Appellant objected to Fletcher's removal and moved for a mistrial. The trial court overruled the objection, denied the mistrial, and proceeded with eleven jurors.
        In his second issue, appellant argues the trial court's ruling violated article 36.29 of the Texas Code of Criminal Procedure. He contends Fletcher was not disabled within the meaning of that statute.
        Article 36.29(a) of the code of criminal procedure provides:
 
Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman. Except as provided in Subsection (b), however, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.
 
 
Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008).
 
        A juror is disabled if he has a physical illness, mental condition, or emotional state that hinders his ability to perform his duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). A disability for purposes of article 36.29 includes any condition that inhibits a juror from fully and fairly performing the functions of a juror. Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003). The determination as to whether a juror is disabled is within the discretion of the trial court. Routier, 112 S.W.3d at 588. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
        Here, the trial court found Fletcher was disabled because of her “emotional distraction” by a woman she knew from church who was seated in the courtroom. Clearly, the issue weighed heavily on Fletcher's mind. She brought it to the trial court's attention not once, but twice, mentioned it to several jurors, and discussed it with her husband. She told the court although she knew she should be focusing on the evidence, she was wondering what the woman's connection was to “him,” apparently a reference to appellant, and had heard only “most” of the evidence.
        When questioned, she could not unequivocally tell the court she could be a fair juror, saying she was “highly uncomfortable.” When further pressed, Fletcher acknowledged that the woman's presence, particularly if she were a witness, might impact her verdict. While she did not specifically say she would automatically believe the woman over all other witnesses, she certainly inferred she would, by explaining the woman was a “nice lady” and wondering why she would lie. Given the State's representation it might call Fletcher as witness (even though it ultimately did not), this was relevant factor in the court's decision.
        In sum, the trial court questioned Fletcher at length to determine whether her distraction would render her impartial. The court was in the best position to assess her answers in light of her demeanor, body language, and tone of her voice. Under the circumstances presented in this case, we cannot conclude the trial court's determination that Fletcher could not fully and fairly perform her functions as a juror is outside the zone of reasonable disagreement. We overrule the second issue.
        In his third issue, appellant argues the trial court's ruling violated article 5, section 13 of the Texas Constitution. Article 5, section 13 provides, in part, as follows:
 
When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.
 
Tex. Const. art. 5, § 13. Appellant's argument under this issue is premised on his position that the juror was not disabled as contemplated by article 36.29. Having concluded otherwise, we also overrule this issue.
        In his fourth issue, appellant argues the ruling violated section 62.201 of the government code because he did not agree to proceed with eleven jurors. Section 62.201 provides “[t]he jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.” Tex. Gov't Code Ann. § 62.201 (Vernon 2005). The court of criminal appeals has explained that state law provides two instances in which a case may proceed with eleven jurors: (1) when the parties consent under section 62.201 and (2) regardless of whether the parties consent, when a juror dies or becomes disabled under article 36.29(b). Hill, 90 S.W.3d at 314. Having concluded the trial court did not abuse its discretion in finding Fletcher disabled under article 36.29(b), the law did not require an agreement. We overrule the third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071211F.U05