L.D. GARRETT III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued February 1, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01394-CR
............................
L.D. GARRETT III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-71109-N
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
        A jury convicted L.D. Garrett III of aggravated sexual assault of a child less than fourteen years of age and assessed punishment at life in prison and a $10,000 fine. In eight issues, appellant complains about the factual sufficiency of the evidence to support his conviction, the admission of certain evidence, and improper argument by the State. We affirm.
        S.D., seventeen years old at the time of trial, testified she was five years old when appellant began dating her mother. S.D. liked appellant and said he was nice and bought gifts for her and her mother. Eventually, he moved in, and S.D. said she looked at appellant as a father figure. One night when she was seven years old, her back started hurting. Because her mother was at work, S.D. told appellant. Appellant told her to lie on the bed and began massaging her back. Appellant then started to rub S.D.'s breasts, told her to remove her underwear, and touched her vagina with his hands. Appellant, who was standing, put S.D.'s legs on his shoulders and penetrated her vagina with his penis. S.D. told him it hurt, and tried to push him off with her feet. Appellant stopped but told her to put her hand on his penis and squeeze.
        S.D. testified that over the next eight years, appellant sexually abused her hundreds of times when her mother was at work or sleeping. She did not tell anyone because appellant told her it was their “secret.” In one incident, he played a pornographic movie. At some point, he began taking a gun and knife into her room and placing them on her dresser during the assaults. The last assault occurred on the day before Christmas Eve when S.D. was fifteen. One week later, S.D. told her mother while the two were driving home in the car. S.D.'s mother told S.D. to “act like nothing was going on” until she could get appellant out of the house.
        That night, the family went to a New Year's Eve party at appellant's sister's house. When they returned home, S.D.'s mother confronted appellant and asked why he had abused S.D. Appellant did not deny the abuse, instead saying he “was trying to get [S.D.'s mother] pregnant” and “[S.D.] started looking good” to him and he “just [didn't] know.” Appellant left the house that night. S.D. and her mother then reported the abuse to the police, who had S.D. call appellant. Police recorded the telephone call, and the tape was played for the jury. In the call, appellant told S.D. that he had confessed to God; promised he would not have sex with her again; told her “if [he] didn't think [she] wanted it, [he] wouldn't had [sic] done it”; and told S.D. he “was in the wrong frame of mind” and “was possessed.” Afterward, S.D. underwent a sexual assault examination and began receiving counseling at school. S.D. testified that as a result of the abuse, she has nightmares and is homosexual.
        S.D.'s younger brother, T.C., testified that he did not notice anything unusual between S.D. and appellant, but there were times when he would go to S.D.'s room and she and appellant would be inside with the door locked and appellant would tell him to go to his room or to go to sleep. T.C. said this usually occurred twice a week between six and eight o'clock at night.
        Dr. Matthew Cox testified that S.D. was examined at Children's Medical Center by Nancy McNeal, a nurse practitioner. The examination was normal, but Dr. Cox said such a finding is typical in sexual abuse cases. He explained there are multiple reasons for a normal examination when abuse has been alleged: the nature of the contact did not damage the tissue, the injuries may have had time to heal and left no scarring, or the penis may have penetrated only the lips of the genitals rather than the inside of the vagina. Dr. Cox said it was “still very possible to have a normal exam even after multiple sexual encounters.”
        Dr. Paul Tathiah, a psychologist with the Dallas Independent School District, said he treated S.D. for about one year for sexual abuse, suicidal ideation, and depression. He told the jury that one issue he addressed with S.D. was “egodystonic homosexuality,” in which sexual abuse victims engage in sexual activity with same-sex partners because sexual activity with members of the opposite sex causes flashbacks. Dr. Tathiah explained that egodystonic homosexuality is “very common” among child sex abuse victims.
        In his defense, appellant denied having any sexual contact with S.D. and denied owning a gun or knife. He also denied that S.D.'s mother confronted him about the abuse and denied the statements attributed to him by S.D.'s mother. Further, when asked why he did not deny abusing S.D. during the telephone call (recorded by the police), he said he did not know “what [S.D.] was doing or what was going on” and he wanted to keep her on the phone so he “could get some kind of talking with her or get some information out of her without getting her upset.” Finally, appellant said he believed S.D. accused him of sexual abuse because he “had noticed a trend of her being bisexual” and that he “would constantly go to her mother about these things” he was noticing about her. On cross-examination, appellant denied telling Detective Glen Slade, who investigated the offense, that he had only touched S.D.'s breast, that she “wanted more” but he stopped, that he had attempted to put his penis in S.D.'s vagina, and that he needed counseling for what he had done.
        In rebuttal, Slade told the jury he questioned appellant after his arrest. Initially, appellant said he touched S.D.'s breast but later also admitted touching her vagina with his penis. At one point, appellant told Slade when he touched S.D., she “wanted more” but he stopped. According to Slade, appellant said “he did what he did because he wanted to teach her that it was better to be with a man than a woman.” The interview was stopped when Slade asked appellant to give a written statement and appellant asked for a lawyer. The interview was not recorded.
        Dallas Police Officer Ivy Crosnon observed the interview and confirmed Slade's testimony. Crosnon testified that when appellant was asked if he had touched S.D., appellant said he had “in certain ways.” Appellant also said he tried once to put his penis in S.D.'s vagina, but S.D. stopped him because it hurt. Officer Crosnon also recalled appellant making the statement he had only touched S.D. but that she wanted more and he stopped.
        In his first issue, appellant contends the evidence is factually insufficient to support his conviction. In reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. Although an appellate court has the ability to second-guess the jury to a limited degree, the factual sufficiency review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Id.
        A person commits aggravated sexual assault of a child where he intentionally and knowingly causes the penetration of the sexual organ of a child younger than fourteen years of age by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2009). A child's testimony alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
        In this case, appellant argues the evidence is factually insufficient because it was conflicting and the State's evidence was not credible. In particular, he contends S.D.'s testimony that she was abused hundreds of times was incredible in light of the fact there was no medical evidence or eyewitnesses to support her allegations. Further, he relies on his own testimony to discredit the evidence that he admitted the abuse to S.D.'s mother, the police, and to S.D. in the recorded telephone call.
        The lack of medical evidence does not render the remaining evidence factually insufficient. Moreover, Dr. Cox testified extensively as to why a sexual assault examination would result in “normal” findings, even in cases of multiple instances of abuse. Likewise, the lack of eyewitness testimony to corroborate S.D.'s testimony is not required. Even so, S.D.'s younger brother testified there were numerous occasions when appellant and S.D. would be in S.D.'s bedroom with the door locked, and appellant would tell him to go to bed. Finally, it was within the jury's province to disbelieve appellant's explanation with respect to the recorded telephone call, his denials that he committed the offense, and his denials that he admitted committing the offense to S.D.'s mother and the police. S.D. testified appellant sexually assaulted her, and appellant denied the allegation. A verdict is not manifestly unjust simply because the jury resolved conflicting evidence in favor of the State. We overrule the first issue.
        In issues two, three, and four, appellant complains about the admission of various evidence. We review the decision to admit evidence under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Id.
        In his second issue, appellant argues the trial court abused its discretion in admitting hearsay evidence about his sister's reaction to S.D.'s disclosure that appellant sexually assaulted her. At trial, S.D. testified that on the night she told her mother about the abuse, the family went to a New Year's Eve party at appellant's sister's house. At the party, S.D. and her mother told appellant's sister “what had been going on.” The following exchange then occurred:
 
[PROSECUTOR]: After his sister was informed of what had been going on, did he still come back home with y'all?
 
 
 
[S.D.]: Yes. Because she said that she didn't want him at her house either, because she had two daughters of her own.
 
        On appeal, appellant argues S.D.'s response was inadmissible hearsay offered to prove that his sister did not want him at her home because she had two daughters, which he contends improperly “bolstered [S.D.'s] testimony by informing the jury that [his] own sister believed [S.D.'s] allegations were true merely upon hearing the allegations.”
        Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Having considered the evidence, we conclude it was not offered for its truth but to show the course of events leading up to the time that S.D. reported the abuse to authorities. See West v. State, 121 S.W.3d 95, 106 (Tex. App.-Fort Worth 2003, pet. ref'd) (concluding complainant's mother's testimony that social worker recommended she discuss assault with complainant was not hearsay because its purpose was to “show contexually what happened next” after complainant was interviewed on videotape).
        Even if we were to conclude the testimony was hearsay, any error is harmless. The admission of inadmissible hearsay is nonconstitutional error and will be considered harmless if, after examining the record as a whole, we are reasonably assured the error did not affect appellant's substantial rights, that is, did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
        After examining the record, we are fairly and reasonably assured the evidence did not have a substantial and injurious effect or influence on the jury's verdict. There was compelling evidence of appellant's guilt apart from S.D.'s testimony; in particular, the three separate admissions by appellant - one in a recorded telephone call played for the jury. Moreover, the State did not reference the complained-of testimony in closing arguments or otherwise focus on it during the trial. Consequently, we cannot conclude it affected appellant's substantial rights. We overrule the second issue.
        In his third issue, appellant argues the trial court abused its discretion in admitting State's Exhibit No. 3, the recording of the telephone call between appellant and S.D., over his “best evidence rule” objection.
        Although the exhibit was not offered during S.D.'s testimony, S.D. testified the voices on the recording belonged to her, appellant, and Detective Slade. During his testimony, Slade identified the exhibit as “a cassette tape marked with [S.D.'s] name on it.” Slade testified he had listened to the tape and there had been no alterations or deletions. Defense counsel was then allowed to take the detective on voir dire:
 
[DEFENSE COUNSEL]: Detective, just so I'm clear, the tape, has it been edited in any form?
 
 
 
[DETECTIVE SLADE]: No.
 
 
 
[DEFENSE COUNSEL]: Is this the original tape or has it been reproduced?
 
 
 
[DETECTIVE SLADE]: I don't know if that's the original or reproduction, but we have the original here.
 
 
 
[DEFENSE COUNSEL]: But you don't know if this is the original or not?
 
 
 
[DETECTIVE SLADE]: She would know. We had a copy made and my secretary gave either the copy or the original to the DA. I don't know which one.
 
Defense counsel then objected to the exhibit “on the grounds of best evidence.” The trial court overruled the objection, and the tape was played for the jury.
        Texas Rule of Evidence 1002 provides: “To prove the content of a . . . recording, the original . . . recording . . . is required except as otherwise provided in these rules or by law. Tex. R. Evid. 1002. One of the exceptions provides that duplicates are admissible generally unless a question is raised concerning authenticity of the original or fairness. See Tex. R. Evid. 1003.
        Initially, we note the record does not establish the exhibit was not the original recording. Regardless, while appellant asserts he raised a question as to the exhibit's authenticity, his “best evidence” objection did not question authenticity; rather, it appears appellant wanted the original as opposed to a duplicate to be introduced. Because no question was raised as to authenticity (even if we assume it was a duplicate), we cannot conclude the trial court erred in admitting the audio recording. We overrule the third issue.         In his fourth issue, appellant contends the trial court abused its discretion in overruling his relevancy objection to the testimony of S.D.'s mother that appellant owned pornography. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401.
        S.D. testified that during one incident, appellant put on a pornographic movie while he was touching her. Her mother's testimony corroborated the fact that appellant owned pornography he could have shown to S.D. Appellant's ownership of pornography was relevant to the allegation of sexual assault and relevant on the issue of intent. Moreover, any error in admitting evidence is cured when the same or similar evidence comes in without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. 1998). Consequently, even if we assumed the evidence was inadmissible, any error was cured by S.D.'s testimony. We overrule the fourth issue.
        In issues five, six, and seven, appellant argues the prosecutor improperly commented on his failure to testify when she referred to appellant's lack of remorse. Appellant contends the argument violated the Fifth Amendment to the United States Constitution, article I, section 10 of the Texas Constitution, and article 38.07 of the Texas Code of Criminal Procedure.
        Appellant testified at the guilt-innocence phase but did not testify at the punishment phase. During jury argument at punishment, the State described appellant as a manipulative, deceitful predator from whom the community needed protection. Using the facts of the case, the State argued against probation and for a lengthy sentence before stating:
 
        . . . He has played with [S.D.'s] faith; he has played with her sexuality; he has altered it for the rest of her life. He has altered her family's life.
 
 
 
        He has played with their emotions, their trust, and their respect for other people; and he has done it all while he has sat here in this courtroom and looked you-all in the eye without a shred of remorse. Nothing. All he did is get up here to lie to your faces.
 
Appellant objected that “the comment 'without regard to a shred of remorse' is a comment on the failure of the defendant to testify.” The trial court overruled the objection.
        Proper jury argument is: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).
        A prosecutor's comment on a defendant's failure to testify offends both the state and federal constitutions as well as Texas statutory law. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005); Montoya v. State, 744 S.W.2d 15, 34 (Tex. Crim. App. 1987) (op. on mot. for reh'g); Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). The defendant has a Fifth Amendment privilege at both the guilt-innocence and the punishment phases of the trial. Wilkens v. State, 847 S.W.2d 547, 553 (Tex. Crim. App. 1992). Waiver of the privilege at the guilt-innocence phase of the trial does not waive the privilege at the punishment phase of the trial. Id.; Brown v. State, 617 S.W.2d 234, 237 (Tex. Crim. App. 1981).
        A comment by the prosecutor on a defendant's failure to show remorse can sometimes be a comment on his failure to testify. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). However, it is well settled that a prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.2001). It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such a character. Id.
        Having reviewed the comment in question and considering it in the context of the argument as a whole, we cannot conclude that it was of such a character the jury would necessarily and naturally take it as a comment on appellant's failure to testify at the punishment phase. Jurors heard the tape-recorded phone call in which S.D. confronted appellant and sought an apology from him for abusing her. In the phone call, appellant suggested S.D. was equally to blame for the abuse, telling her she “had an option” and “if [he] didn't think [she] wanted it, [he] wouldn't had [sic] done it.” In addition to this evidence, jurors also heard the police officers' testimony that appellant accused S.D. of being the one who wanted “more” and justified his conduct by saying “he wanted to teach her that it was better to be with a man than a woman.” While this evidence was offered at guilt-innocence, it nevertheless was available to jurors at punishment and supports an inference that appellant was unremorseful.         Moreover, the argument was made in the context of the prosecutor's plea for law enforcement. The argument was made in support of the prosecutor's plea for a lengthy sentence and against probation as the prosecutor summarized the testimony of a probation officer regarding the risk potential of sex offenders as well as S.D.'s testimony regarding the first time she was assaulted by appellant.   See Footnote 1  Because the prosecutor's argument (1) was supported by the evidence heard by the jury during the trial; (2) used a summary of that evidence as part of a call for law enforcement; and (3) was not a direct comment on appellant's failure to testify, it did not infringe on appellant's right against self-incrimination. See Andrade v. State, 246 S.W.3d 217, 230 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (concluding, under similar circumstances, that prosecutor's argument in murder case that defendant “doesn't care” and “has no remorse” was not comment on failure to testify).
        Finally, even if the trial court abused its discretion by overruling the objection to the argument, any error was harmless. See Tex. R. App. P. 44.2(a); see also Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.-Fort Worth 2003, pet. ref'd). Under Texas Rule of Appellate Procedure 44.2(a), upon determining constitutional error exists, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant's punishment. See Tex. R. App. P. 44.2(a). Our primary inquiry is what effect the error had, or reasonably may have had, on the jury's decision. Wimbrey, 106 S.W.3d at 192. We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would likely encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).         The complained-of comment was, at most, an indirect comment on appellant's failure to testify. The comment was only a small portion of the opening punishment argument and was not repeated, mentioned, or emphasized, leading us to conclude that a jury probably would not attribute much, if any, weight to the error. There is nothing to suggest that by declaring the error harmless, the State would repeat it with impunity. Finally, the trial court read the punishment charge to the jury prior to argument. That charge, which the jury had at the time of deliberations, contained an instruction not to refer or allude to the fact that appellant did not testify at the punishment phase or consider it for any purpose, and the jury is presumed to have followed these instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Having conducted a constitutional analysis and determined no harm, we likewise conclude appellant's substantial rights were not impacted by any alleged violation of article 38.08. See Tex. R. App. P. 44.2(b). We overrule the fifth, sixth, and seventh issues.
        In his eighth issue, appellant contends the trial court erred in overruling his objection to the prosecutor's argument that she would have to convey the jury's punishment verdict to S.D. Appellant complains about the following argument: “At the end of this trial I'm going to have to call [S.D.] if she's not here. And I'm going to have to tell her what you-all decided this case is worth. Whatever -”
        Appellant objected that the prosecutor was “arguing outside the record”, and the trial court overruled the objection. That the prosecutor would have to convey to S.D. the jury's verdict on punishment, if S.D. was not in court, is a reasonable, fair, and legitimate inference that could be drawn from the facts in evidence. See Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981) (concluding it was reasonable and fair inference that victim had a mother and that there had been a Christmas in the year preceding trial). We overrule the eighth issue.         We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081394F.U05
 
Footnote 1 Specifically, she argued, in part:
        He is a man who spit in the face of that faith, spit in the face of all common decency and respect for human beings, who lays a seven-year- old girl down on a bed, puts her legs on his chest and sticks his penis inside her seven-year-old vagina. That's who he is. And for that you need to be asking yourselves what does he deserve and when do you trust him again.
        The fact of the matter is - and [the probation officer] told you - you can't ever trust him again. There is no such thing as a no-risk or low- risk offender. And the fact of the matter is, they do reoffend. Not all, but a lot do. And you don't want to take the bet or gamble on him, the master at manipulating and deceiving. That's exactly how good he is. Thank God [S.D.] finally told someone to save the next children that might have come along.
* * *
 
        . . . [H]e doesn't deserve probation. Some people need to pay for the tremendously horrible and sick acts that they do. Men like him, they don't get the benefit. They don't deserve probation. In fact, he deserves nothing less than a significant amount of time in the penitentiary.