Johnny Edward Douthit v. The State of Texas--Appeal from 8th District Court of Hopkins County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00007-CR
______________________________
JOHNNY EDWARD DOUTHIT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 9915633
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N

Johnny Edward Douthit appeals his conviction by a jury of indecency with a child by contact. The jury assessed punishment at twenty years' imprisonment and a $10,000.00 fine. The issue at trial was whether Douthit had sexual contact with M. D., a child, in violation of Tex. Pen. Code Ann. 22.011 (Vernon 2003).

On appeal, Douthit contends: (1) the trial court erred by overruling his motion for a directed verdict; (2) the evidence was factually insufficient to support the verdict; and (3) the trial court violated his constitutional right to confrontation by quashing his subpoena for the child, finding the child unavailable, and admitting into evidence a videotaped interview with the child.

Douthit first contends the trial court erred by overruling his motion for a directed verdict because the evidence was legally insufficient to meet the State's burden on the indicted offense.

A point of error complaining about a trial court's failure to grant a motion for a directed verdict is a challenge to the legal sufficiency of the evidence. See Turner v. State,No. 01-01-00204-CR, 2003 Tex. App. LEXIS 2319, at *31 (Tex. App.-Houston [1st Dist.] Mar. 20, 2003, no pet. h.); see also Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). A legal sufficiency challenge requires an appellate court to view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 2003 Tex. App. LEXIS 2319, at *31 (citing King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). Although our analysis considers all evidence, we may not reweigh the evidence and substitute our judgment for that of the jury. King, 29 S.W.3d at 562.

Douthit moved for a directed verdict based on the State's failure to meet its burden of proof on the indicted offense, aggravated sexual assault pursuant to Tex. Pen. Code Ann. 22.011(a)(2)(A). The jury, however, found Douthit "not guilty" of aggravated sexual assault, but "guilty" of the lesser included offense of indecency with a child pursuant to Tex. Pen. Code Ann. 21.11 (Vernon 2003). Thus, the question of whether the trial court erred in denying Douthit's motion for a directed verdict for aggravated sexual assault is moot. Even so, there was more than a scintilla of evidence on each element of the indicted offense to submit the issue to the jury.

The indictment alleged Douthit, "on or about the 25th day of June, 1999, . . . intentionally and knowingly cause[d] the penetration of [the] female sexual organ of [M. D.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, by any means." See Tex. Pen. Code Ann. 22.011(a)(2)(A). (1)

M. D., born November 30, 1994, was four years of age on the alleged date of the offense and five years of age at the time of Douthit's trial.

The record contains the following evidence of Douthit's guilt of the indicted offense. Douthit admitted physically touching M. D.'s vagina. Specifically, Douthit told Detective David Gilmore that, on one occasion when M. D. was six months old, he touched her vagina with his hand and wished his face were as smooth as her vagina. According to Gilmore, when he asked Douthit if the touching referred to penetration, Douthit responded that he touched M. D. with his finger.

In addition to these admissions by Douthit, Ginger Brooks, a licensed therapist who works with sexually abused children, testified M. D. told her Douthit put his hands down her panties and "touched [her] bo-bo." "Bo-bo" is the name by which M. D. referred to her vagina, as well as her "butt." M. D.'s mother testified M. D. complained of her "bo-bo" hurting quite a bit.

Brooks testified she believed Douthit sexually molested M. D. Penny West, another licensed counselor, testified M. D.'s behavior was consistent with a child who had been sexually molested.

In addition to this evidence, the State presented medical evidence from Dr. Annette Horner, who examined M. D. July 12, 1999. Horner testified her examination revealed M. D. had a detached hymen. Horner testified that, in order to detach the hymen, "[s]omething has to be inserted into the vagina." When asked how long ago M. D.'s hymen had been detached, Horner testified it had not been recent since there was no blood or bruising.

Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt the State presented legally sufficient evidence on the elements of the charged offense. Therefore, the trial court's denial of Douthit's motion for a directed verdict was proper. Douthit's first point of error is overruled.

Douthit also challenges the factual sufficiency of the evidence to support the jury's verdict. But Douthit offers no authority or argument on this issue; thus, it is inadequately briefed. See Tex. R. App. P. 38.1(h); Reed v. State, 48 S.W.3d 856, 863-64 (Tex. App.-Texarkana 2001, pet. ref'd). Even so, we find the evidence more than factually sufficient to support the jury's verdict finding Douthit guilty of indecency with a child by contact. Douthit's second point of error is overruled.

Douthit contends in his third point of error he was denied his constitutional right to confrontation and cross-examination when the trial court quashed his subpoena for M. D. and allowed videotape evidence of interviews with M. D. by a child advocacy counselor. We will review the issues of the videotape admission and the quashed subpoena separately.

Douthit contends the trial court should not have admitted the videotaped interviews into evidence because of a Confrontation Clause violation and because such interviews were hearsay. Douthit, however, made neither of those objections at trial. His only objection at trial was based on witness competency. (2)

Douthit therefore failed to preserve error based on hearsay or the Confrontation Clause. (3) See Tex. R. App. P. 33.1; Simmons v. State, No. 06-01-00142-CR, 2003 Tex. App. LEXIS 766, at *18 (Tex. App.-Texarkana Jan. 27, 2003, pet. filed). Douthit did, however, preserve error on the issue of whether quashing his subpoena for M. D. violated his Sixth Amendment right to confrontation and cross-examination.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to confront the witnesses against him. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). A trial court violates a defendant's right of confrontation if it improperly limits appropriate cross-examination. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). The Confrontation Clause and cross-examination exist in part to ensure fairness in criminal proceedings. Offor v. Scott, 72 F.3d 30, 33-34 (5th Cir. 1995). Through cross-examination, a defendant tests the believability of a witness and the truth of that witness' testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974).

Although a defendant's right to confrontation and cross-examination is constitutionally safeguarded, the right is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Sherman v. State, 20 S.W.3d 96, 100 (Tex. App.-Texarkana 2000, no pet.). The trial court retains great latitude in limiting cross-examination. Sherman, 20 S.W.3d at 100. Specifically, a trial court may limit cross-examination when the cross-examination might cause harm to the witness. Id.; see Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.

We agree with Douthit's contention that quashing his subpoena for M. D. had the effect of denying him the opportunity to cross-examine her. Our task, then, is to determine whether this limitation was an abuse of the trial court's discretion. See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993); Sherman, 20 S.W.3d at 100. This inquiry depends on the facts of each case. Love, 861 S.W.2d at 904.

Here, the trial court based its decision to quash the subpoena for M. D. on a finding of unavailability under Tex. Code Crim. Proc. Ann. art. 38.071, 6, 7, 8 (Vernon Supp. 2003). This statute specifically authorizes, in limited circumstances, the testimony of a child victim by means other than the traditional in-court method. After hearing evidence on the factors allowed by the statute, the trial court specifically found the child was unavailable as defined in the statute. In making this finding, the court considered several factors, including: (1) "the relationship of the defendant to the child"; (2) "the characterization of the alleged offense"; (3) the age, maturity, and emotional stability of the child"; and (4) the "emotional or psychological harm [that] would come to the child if the child was to testify in front of [Douthit] as well as the jury." Douthit made no objection to the trial court's findings and does not challenge the sufficiency of those findings. Rather, his only contention on appeal is the effect the decision to quash had on his ability to confront and cross-examine M. D.

The factors stated by the trial court-most notably the reference to psychological harm to M. D.-indicate the trial court quashed the subpoena of M. D. to prevent harm to her. The trial court was authorized to do this pursuant to Article 38.071. No claim is made on appeal that this statute is unconstitutional, and we conclude that quashing the subpoena was within the trial court's sound discretion under this statute. Douthit's third point of error is overruled.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: February 27, 2003

Date Decided: April 24, 2003

 

Do Not Publish

1.

1This language represents an amendment to the original indictment. In his brief, Douthit relies on the original indictment, which required the State to prove Douthit caused the "sexual organ of [M. D.] . . . to contact the sexual organ of the Defendant." (Emphasis added.)

2.

2Douthit does not raise the issue of witness competency on appeal.

3.

3Both Douthit and the State focus extensively on the analysis set forth in Idaho v. Wright, 497 U.S. 805 (1990), outlining the process for admitting hearsay evidence when a child is found unavailable. However, we need not engage in this analysis because no error was preserved on this issue.