Eric Shane Powell v. The State of Texas--Appeal from 63rd Judicial District Court of Edwards County

MEMORANDUM OPINION

No. 04-04-00683-CR

Eric Shane POWELL,

Appellant

v.

The STATE of Texas,

Appellee

From the 63rd Judicial District Court, Edwards County, Texas

Trial Court No. 1478

Honorable Thomas F. Lee, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

Eric Shane Powell was convicted by a jury of aggravated sexual assault and sentenced to thirty years imprisonment. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion.

1. In his first issue, Powell asserts that this appeal should be abated for a hearing on his late amended motion for new trial because he was denied counsel during the time to file an amended motion for new trial. An amended motion for new trial must be filed within thirty days after the date sentence is imposed or suspended. Tex. R. App. P. 21.4(b). A late amended motion for new trial fails to vest the trial court with jurisdiction over the issues included in the amended motion, and the claimed deprivation of constitutional rights cannot confer jurisdiction upon a court where none exists. State v. Lewis, 151 S.W.3d 213, 219 (Tex. App. Tyler 2004, pet. ref d); Mercier v. State, 96 S.W.3d 560, 562 (Tex. App. Fort Worth 2002, pet. stricken). Accordingly, the trial court is without jurisdiction to consider Powell s late amended motion.

2. Powell asserts in his second issue that the State failed to disclose impeachment and exculpatory evidence during pre-trial discovery, specifically the victim s school records, a videotaped interview of the victim, and the identity of the interviewer and two of the victim s counselors. To demonstrate a violation of due process rights through the State s suppression of exculpatory evidence, including impeachment evidence, the defendant must show: (1) the State failed to disclose evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Haygood v. State, 127 S.W.3d 805, 809 (Tex. App. San Antonio 2003, pet. ref d). In order to be material, the evidence must, when examined as part of the entire record, create a reasonable doubt concerning the defendant s guilt that would not otherwise exist. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); Haygood, 127 S.W.3d at 809. Powell failed to establish that the victim s school records were in the State s possession. Furthermore, the trial court reviewed the videotape before trial and informed Powell of the information that the trial court believed might be useful to Powell s defense. Finally, Powell s brief only suggests the possibility that the evidence alleged to have been withheld could have assisted the defense if the evidence had contained information Powell could use to impeach the victim; however, this mere possibility is not sufficient to establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612; Haygood, 127 S.W.3d at 809.

3. In his third and fourth issues, Powell asserts that the evidence is legally and factually insufficient to support the jury s verdict. Powell focuses on the testimony regarding the victim s clothing to assert that the victim s clothing would have prevented him from engaging in the sexual act in the manner the victim alleged. Powell also focuses on the late outcry and the absence of medical evidence to support the allegations. The victim s testimony was supported by the testimony of the outcry witness and the testimony of the victim s aunt, who is Powell s ex-wife. The victim s aunt testified that Powell admitted to her that he did do it, but not everything was true that [the victim] was saying. See Tear v. State, 74 S.W.3d 555, 560 (Tex. App. Dallas 2002, pet. ref d) (testimony of a child victim alone is sufficient evidence). Although Powell denied the allegations, the jury chose to believe the victim. We defer to the jury s determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); Murray v. State, 24 S.W.3d 881, 887 (Tex. App. Waco 2000, pet. ref d).

4. In his fourth issue, Powell complains that the trial court abused its discretion in allowing the investigating sheriff, Donald Gary Letsinger, to remain in the courtroom during trial. Although Powell requested that Letsinger be placed under the rule, Powell did not object when the trial court excluded Letsinger from the rule because he was the case officer. Accordingly, Powell did not preserve this issue for appellate review. See Tex. R. App. P. 33.1. Even if the issue had been preserved, we would not find reversible error. Although the designation of a witness as a case officer does not exclude the witness from the rule, any resulting error must be disregarded unless it affects the defendant s substantial rights. Russell v. State, 155 S.W.3d 176, 181-82 (Tex. Crim. App. 2005). The question in assessing the harm of allowing Letsinger to remain in the courtroom is whether he was influenced in his testimony by the testimony he heard. Id. at 181. We see no likelihood that Letsinger s testimony regarding the phone call he received, the nature of the allegations that were made, and the steps taken during the investigation was influenced by his hearing of the other testimony.

5. Powell s final issue raises a complaint regarding the victim being permitted to hold a stuffed toy while testifying. In this case, the victim was ten at the time of the offense and twelve at the time of trial. Allowing the victim to hold a stuffed toy during her testimony was a reasonable step in minimizing the trauma and stress the victim faced. See, e.g., Tex. Code Crim. Proc. Ann. art. 38.071, 10 (Vernon 2004-2005) (directing trial court to minimize trauma and stress to child victim); In re D.T.C., 30 S.W.3d 43, 47-48 (Tex. App. Houston [14th Dist.] 2000, no pet.) (allowing Youth Victim Witness volunteer to stand by the complainant held to be reasonable step to help minimize trauma); Conrad v. State, 10 S.W.3d 43, 46-47 (Tex. App. Texarkana 1999, pet. ref d) (allowing mother to stand by complainant held to be reasonable step); Sperling v. State, 924 S.W.2d 722, 725-26 (Tex. App. Amarillo 1996, pet. ref d) (allowing complainant to hold teddy bear while testifying noted as being reasonable step).

The trial court s judgment is affirmed.

Phylis J. Speedlin, Justice

DO NOT PUBLISH