Kathy Annette Frueboes v. The State of Texas--Appeal from 178th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00061-CR

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KATHY ANNETTE FRUEBOES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th Judicial District Court

Harris County, Texas

Trial Court No. 888481

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

An inebriated Kathy Annette Frueboes, forty-two years of age, tried to initiate sex with a boy of thirteen. One critical question on appeal is how far she got. The boy ran away and told his family, who called police. A jury convicted Frueboes of aggravated sexual assault of a child and assessed her punishment at five years' confinement, probated. Strangely enough, during the trial, one of the jurors was arrested and charged with indecent exposure at a local "adult" movie theatre. That, too, is an issue on appeal.

Frueboes seeks reversal of her conviction asserting (1) the trial court erroneously denied her motion for mistrial and her motion for new trial made on the basis of a juror's arrest during trial, (2) the evidence is legally and factually insufficient to prove sexual contact, (3) the trial court erroneously overruled her motion for mistrial when a witness mentioned Frueboes had been offered a polygraph examination, and (4) inadmissible hearsay testimony was introduced through a medical witness. We affirm.

"Indecent" Juror

Frueboes argues the trial court erred by not granting her motion for mistrial made after a juror was arrested during the course of the trial at a local "adult" theatre and charged with indecent exposure. Frueboes relies on the rule stating that a defendant must be granted a new trial when "a juror has been bribed to convict or has been guilty of any other corrupt conduct." Tex. R. App. P. 21.3(d) (emphasis added).

We review a trial court's denial of a mistrial under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). Mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).

The record shows that, after presentation of evidence ended, the jury deliberated for approximately two hours and was excused for the evening. That night, one of the jurors was arrested for public lewdness occurring while he was at an "adult" theatre. The next morning, the trial court signed a pretrial release bond to get the arrested juror out of custody and back in the courtroom, and then asked the juror if anything that had occurred since his arrest would make him feel unable to fulfill his duties as a juror. The juror said he believed he could still be fair. The trial court directed the juror not to mention the matter to the other jurors. The bailiff pointed out that, though the panel was unaware of what was happening with the juror in question, the jury was sitting in the public area, and he was reasonably certain someone on the panel saw the juror escorted into the courtroom. Frueboes moved for a mistrial based on the arrest, arguing the juror could not set aside the arrest and act fairly, and asserting the potential prejudice to Frueboes because of the other jurors' knowledge that one of them had been arrested. Frueboes' postconviction motion for new trial also asserted this point.

On appeal, Frueboes argues the court erred by overruling her motion for mistrial and her motion for new trial. In connection with the denial of the mistrial, Frueboes argues that the mistrial was required under Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2004). That article provides a procedure that should be followed if a juror dies or becomes disabled. That argument was never presented to the trial court, and we may not address it on appeal. See Tex. R. App. P. 33.1.

Frueboes also argues that, under Tex. R. App. P. 21.3(d), we should order a new trial as required when "a juror has been bribed to convict or has been guilty of any other corrupt conduct." Frueboes argues that, because the juror was arrested for public lewdness, corrupt conduct has been shown and reversal is mandatory.

The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

Frueboes argues that the phrase "corrupt conduct" necessarily should cover a juror's arrest during trial for conduct involving moral turpitude. The State argues that, because the term "corrupt conduct" follows the term "bribery," "corrupt conduct" should be limited to activities like bribery. The phrase is broader than a specific type of wrongful activity, and we see no reason to read it as narrowly as the State suggests. See Lamkin v. State, 301 S.W.2d 922 (Tex. Crim. App. 1957); see generally Powell v. State, 939 S.W.2d 713 (Tex. Crim. App. 1997) (attempted bribery of juror did not corrupt process).

We believe the rule was not written to cover all types of corrupt conduct wherever or however committed, but instead contemplates corrupt conduct on the part of the juror in the performance of his or her duties as a juror. // The allegation urging the motion for new trial did not suggest his conduct as a juror was in any way corrupt. Accordingly, we find the trial court did not abuse its discretion by denying the motion for new trial.

Evidentiary Sufficiency

Frueboes next contends the evidence is factually and legally insufficient to prove her sexual contact with the complainant. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing factual sufficiency, we view the evidence in a neutral light, favoring neither party. Id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

Frueboes focuses her argument on the insufficiency of the evidence to show actual touching between her genitals and the victim's. The victim testified he thought they did, just for a second. A doctor repeated the boy's claim in the form of medical testimony. Aggravated sexual assault of a child is defined as occurring when an accused intentionally causes the sexual organ of a child younger than fourteen years of age to contact the sexual organ of the accused. Tex. Pen. Code Ann. 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2004).

The victim testified on direct examination his penis did make contact with Frueboes' vagina. On cross-examination, he was asked if it was possible that it may have only touched her genital area, to which the victim responded that it was possible. There was some imprecision in the terminology used. We recognize, however, that "female sexual organ" is a more general term that refers to the entire female genitalia. See Everage v. State, 848 S.W.2d 357, 358 (Tex. App. Austin 1993, no pet.). Even though the victim's testimony about the exact nature of the contact was imprecise, this is hardly unusual when reviewing the testimony of a child in connection with a sexual assault. Because the victim testified his penis touched her vagina, the evidence is both legally and factually sufficient to support the verdict. We overrule this contention of error.

Polygraph Offer

Frueboes next contends the trial court erred by failing to grant her motion for mistrial after a witness for the State testified Frueboes had been offered a polygraph test. The trial court sustained Frueboes' objection and instructed the jury to disregard the comment. Her motion for mistrial was denied.

Counsel correctly points out that the results of a polygraph test are absolutely inadmissible. Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985). Further, if a witness testifies that a defendant refused to take a polygraph test and that testimony is deemed unduly persuasive, a mistrial may be required. See Kugler v. State, 902 S.W.2d 594, 595 97 (Tex. App. Houston [1st Dist.] 1995, pet. ref'd) (refusal to take polygraph test mentioned twice by witness, second time after objection sustained and jury instruction given to disregard first mention of refusal).

In this case, however, the witness was stopped before so testifying about any refusal. The witness testified she normally gives suspects an opportunity to respond and normally offers a polygraph test, but her testimony was ended at that point when counsel objected. After a discussion outside the presence of the jury, the trial court then correctly and strongly instructed the jury, "Polygraph tests are scientifically unreliable, they are not admissible as a matter of law in any court in this state. It's scientifically unreliable evidence. So, forget it was uttered. Disregard it. Don't think about it. Don't discuss it. Proceed." An instruction to disregard normally cures error, except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds. Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987); Carter v. State, 614 S.W.2d 821 (Tex. Crim. App. 1981).

Under these circumstances, we find the testimony was not so extreme as to render the instruction insufficient. Therefore, the trial court did not abuse its discretion by overruling the motion for mistrial.

Medical Hearsay

Frueboes next contends the trial court erred by allowing into evidence a medical report and testimony by Dr. Lara Finnila, a pediatrician who examined the victim during his visit to the emergency room. Finnila saw the victim about fourteen hours after the incident.

At trial, counsel objected to the admission of the medical records and to Finnila's testimony, based on relevance. See Tex. R. Evid. 403; Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004). On appeal, Frueboes argues the evidence was inadmissible as outcry testimony because the victim was outside the age range of the statute. That is correct, because this victim was over the age of twelve. Thus, by its own terms, the minor outcry statute would not support admission of the evidence.

The State offered the evidence as an exception to the hearsay rule as a statement made for purposes of medical treatment. Counsel did not argue that the hearsay exception did not apply, but instead made a policy argument that, by applying that exception, the State had found a way around the Article 38.072 outcry statute which would allow testimony about the reason for the medical visit, i.e., the sexual assault, into evidence.

The State argues that this appellate argument does not comport with the objections raised below and that we therefore cannot address the argument. See Dixon v. State, 2 S.W.3d 263 (Tex. Crim. App. 1999). We agree. The objection did not refer to the rule now cited, but the rule had been specified by the State, and counsel responded to the State's reasoning with his objection. The relevant objection at trial was that to allow the hearsay evidence to be admitted would serve to undermine the purpose of the outcry statute, since this victim did not meet its requirements. On appeal, counsel argues that the evidence was inadmissible because it was not made for the purpose of medical diagnosis or treatment. See Tex. R. Evid. 803(4).

That argument was not presented to the trial court for decision and therefore has not been preserved for our review. See Tex. R. App. P. 33.1.

We affirm.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 3, 2004

Date Decided: March 31, 2004

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