Terry Alan Whitson v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-95-023-CR

TERRY ALAN WHITSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 30019

O P I N I O N

A jury found Terry Alan Whitson guilty of seven counts of sexual assault. Tex. Penal Code Ann. 22.011(a)(2)(C)-(D) (Vernon 1994). Whitson appeals on six points. We will affirm the judgment.

The victim of Whitson's assault was a fifteen-year-old boy. He was having difficulty dealing with the recent death of his father when he met Whitson, who had expressed interest to the victim's grandmother in becoming a "big brother" to a child without a father. Whitson soon fostered a relationship with the victim and his mother. Thereafter, Whitson began buying the victim expensive merchandise and taking him to restaurants and movies. Whitson would occasionally invite the victim over to spend the night.

The State alleges that on or about August 15, 1993, Whitson was at the victim's house visiting with him in his bedroom. During a verbal joust with Whitson, the victim told him to "suck my dick." Whitson responded, "Man, you can't handle it," and followed-up with the proposition, "I'll bet you $35.00 you couldn't handle it." Whitson then had the victim lie on a bed and performed oral sex on him. Over the next four months, Whitson allegedly performed oral sex on the victim four more times. The State also alleges that, on two other occasions, Whitson unsuccessfully tried to insert his penis into the victim's anus.

Whitson was ultimately indicted for seven counts of the felony offense of sexual assault. Id. Whitson pled not guilty to the indictment and the jury assessed punishment for counts one through six at twenty years in prison, and for count seven at ten years probation with a $10,000 fine. Whitson appeals on six points.

In point one, Whitson argues that the definition of "sexual assault" in the charge was fundamentally defective. In the same point, Whitson complains that, as a result of the defective definition, the evidence was legally insufficient to support a finding of guilt. Normally, when multiple legal theories are presented in a single point, it is multifarious and presents nothing for appellate review. Thomas v. State, 723 S.W.2d 696, 697 n.2 (Tex. Crim. App. 1986). However, since Whitson's complaints in point one are sufficiently clear, we will address them in the interest of justice.

We first consider Whitson's argument that the definition of "sexual assault" in the charge was fundamentally defective. The definitional section of Whitson's jury charge defined "sexual assault" as follows:

Our law provides that a person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the mouth of a child by any means.

(Emphasis added). It is undisputed that this definition conflicts with the State's theory of the case, i.e., that Whitson caused the penetration of his own mouth with the sexual organ of the victim. However, because Whitson failed to properly object at trial to the charge, any alleged error in the charge is waived. Cano v. State, 681 S.W.2d 291, 293 (Tex. App. San Antonio 1984, pet. ref'd). To obtain reversal, Whitson must now claim that the error was "fundamental." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

When a charging error is urged for the first time on appeal, a reviewing court can reverse only if the error is fundamental, i.e., so egregious and harmful that the defendant did not have a fair and impartial trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171. The "degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171.

We find no egregious harm to Whitson as a result of the way the jury was charged. The prosecution's theory of the case is obvious when viewed in light of the entire jury charge. Five application paragraphs in the charge state that the jury should find Whitson guilty of sexual assault, as charged in corresponding counts one through five of the indictment, only if they find that he "did intentionally or knowingly cause the sexual organ of [victim] . . . to penetrate the mouth of said Defendant." (Emphasis added). In fact, these application paragraphs mirrored the language used in the indictment and were consistent with the evidence and arguments presented at trial.

The erroneous portion of the charge defined sexual assault as "caus[ing] the penetration of the mouth of a child by any means." (Emphasis added). The prosecution never alleged or argued that this event took place. We find no evidence of such an event in the record. Thus, the jury obviously disregarded the definition in making its decision. As a result, Whitson cannot show that he suffered egregious harm from the error. Even if the jury chose to follow the definition, Whitson would have only benefitted by their choice because the absence of evidence to support the definition could have only mislead the jury in his favor. We overrule the first complaint in point one.

We next consider Whitson's other argument in point one, that as a result of the definition of sexual assault in the charge the evidence was legally insufficient to support a finding of guilt. This argument necessarily assumes that the sufficiency of the evidence in this case is judged in some way by the contents of the definition. To the contrary, sufficiency of the evidence is measured by the contents of the application paragraph in the charge, not by abstract definitions. Biggins v. State, 824 S.W.2d 179, 180 (Tex. Crim. App. 1992); Walker v. State, 823 S.W.2d 247, 248 (Tex. Crim. App. 1991); Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991) ("a charge which fails to apply a theory of law to the facts of the case is insufficient to authorize conviction on that theory, even where the theory of law is abstractly defined in the charge.").

In Biggins, Walker, and Jones, the application paragraphs were lacking a theory of law necessary to authorize conviction in light of the evidence presented. // Id. In this case, the application paragraphs correctly state and apply the law under which Whitson was prosecuted: Whitson "did intentionally or knowingly cause the sexual organ of [victim] . . . to penetrate [Whitson's] mouth." The prosecution presented evidence that Whitson performed oral sex on the victim on at least five different occasions. We find this evidence is legally sufficient to support a finding of guilt when measured against the application paragraphs in the court's charge. Thus, we also reject Whitson's second argument in point one. Point one is overruled.

In point three, Whitson argues that the court improperly admitted evidence of unadjudicated extraneous offenses during the punishment phase of the trial. The record indicates that, during the punishment phase, the State offered testimony from four witnesses. Each testified about different unadjudicated extraneous offenses and acts of misconduct involving Whitson.

The offense date in the first count of the indictment was on or about August 15, 1993. In trials for noncapital offenses that occurred prior to September 1, 1993, evidence of unadjudicated extraneous offenses is not admissible during the punishment phase. Grunsfeld v. State, 843 S.W.2d 521, 526 (Tex. Crim. App. 1992). Effective September 1, 1993, the Texas Legislature amended article 37.07, section 3(a) of the Code of Criminal Procedure to allow admission of unadjudicated extraneous offenses at the punishment phase of a noncapital case. // Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 1995); Voisine v. State, 889 S.W.2d 371, 372 (Tex. App. Houston [14th Dist.] 1994, no pet.) (amendment to article 37.07 applies only to trials for offenses committed on or after September 1, 1993). Thus, unadjudicated extraneous offense testimony during the punishment phase of Whitson's trial was inadmissible as to count one because it occurred prior to September 1, 1993 and admissible as to counts two through seven because they occurred after September 1, 1993.

We first consider whether the complaint raised in point three has been preserved for our review. To preserve a complaint for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on that objection. Broxton v. State, No. 71,488, slip op. at 9 (Tex. Crim. App. October 4, 1995). In addition, the point of error on appeal must correspond to the objection made at trial. Id. However, the Court of Criminal Appeals has also concluded that "there are no technical considerations or form of words" required; thus, an objection is sufficient if the party "let[s] the trial judge know what he wants, why he thinks himself entitled to it, and [does] so clearly enough for the judge to understand him at a time when the trial court is in the proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Whitson objected to the testimony of each of the four witnesses pursuant to Rules of Criminal Evidence 401 and 403, the notice provision of Rule of Criminal Evidence 404(b), and a previously filed motion to exclude evidence for lack of notice. Tex. R. Crim. Evid. 401, 403, 404(b). He objected to the testimony of three of the witnesses under Rule of Criminal Evidence 402 and the notice provision of article 37.07 of the Code of Criminal Procedure. Id. 402; Tex. Code Crim. Proc. Ann. art. 37.07, 3(g). He also objected to the testimony of two of the witnesses based on the character-conformity provision of Rule of Criminal Evidence 404(b). Tex. R. Crim. Evid. 404(b).

The question is whether any of the objections above are sufficient to preserve a complaint about the improper admission of unadjudicated extraneous offenses in the punishment phase of a trial where the offense date was August 15, 1993. The State argues that, because Whitson failed to specifically object under Grunsfeld or article 37.07, section 3(a) of the Code of Criminal Procedure, he has waived point three. See 843 S.W.2d at 526; Tex. Code Crim. Proc. Ann. art. 37.07, 3(a). Whitson argues, however, that he was not required to use any "magic words," and that his objections pursuant to Rules 401 and 403 were sufficient to preserve his complaint. Tex. R. Crim. Evid. 401, 403.

Rule 401 defines "relevant evidence" 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." Id. 401. Rule 403 provides the general authority to exclude relevant evidence on the basis of unfair prejudice, confusion of issues, misleading the jury, undue delay, and cumulativeness. Id. 403. Whitson argues that the essence of a "Grunsfeld issue" is relevance, i.e., whether unadjudicated extraneous offenses are facts that are of consequence to the determination of punishment. Grunsfeld, 843 S.W.2d 521. We agree and conclude that Whitson's objections pursuant to Rules 401 and 403 were sufficient to call the matter to the attention of the court. //

However, as we stated earlier, because the offenses in counts two through seven occurred after the Texas Legislature amended article 37.07, section 3(a) of the Code of Criminal Procedure to allow admission of unadjudicated extraneous offenses, the State was entitled to introduce evidence of Whitson's extraneous offenses at the punishment phase of trial for the limited purpose of assessing punishment for counts two through seven. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a); Voisine, 889 S.W.2d at 372. Whitson did object to the unadjudicated extraneous-offense testimony; however, because he failed to ask the court for a limiting instruction, the court admitted the evidence without limitation. "Where evidence is admissible for a limited purpose and the court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction." Abdnor v. State, 808 S.W.2d 476, 478 (Tex. Crim. App. 1991). Rule of Criminal Evidence 105(a) requires:

(a)When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

Tex. R. Crim. Evid. 105(a) (emphasis added). Because Whitson failed to request a limiting instruction as to the unadjudicated extraneous-offense testimony, his complaint is not preserved for our review. Point three is overruled.

In point two, Whitson argues that the court abused its discretion by denying him a pretrial hearing to determine the admissibility of extraneous offenses the State intended to introduce in its case in chief. He claims that this unfairly restricted his voir dire, denying him the opportunity to question potential jurors about what impact extraneous offenses might have on their verdicts. As a result, Whitson claims he was denied the effective assistance of counsel.

Prior to trial, and in response to Whitson's timely request, the State gave notice of its intent to introduce extraneous offenses in its case in chief. See Tex. R. Crim. Evid. 404(b). Whitson requested a pretrial determination of the admissibility of these extraneous offenses, while the State suggested that the court take up such matters during trial, outside the presence of the jury. The court denied Whitson's motion, placing him on the horns of a dilemma: either ignore the extraneous matters during voir dire, even though they might later be ruled admissible, or inquire about the panel's ability to follow the court's instructions on the extraneous matters, even though they might later be ruled inadmissible. In other words, Whitson was placed in the precarious position of having to guess whether he should suggest the existence of extraneous offenses which might not be admitted into evidence in the presence of the jury.

Whitson vigorously argues the importance of voir dire and emphasizes that a "broad scope of voir dire" is necessary to ensure the effective assistance of counsel and the right to a fair trial and an impartial jury. See McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim. App. 1992); Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990). He argues that the court's denial of the pretrial hearing restricted his ability to properly question the jury panel. We agree that voir dire is important; however, we do not believe the court's failure to hold a pretrial hearing had the direct effect of restricting Whitson's voir dire. The court's ruling did not amount to a denial of Whitson's right to question potential jurors regarding the impact of extraneous offenses on their verdicts. Despite the ruling, Whitson was still entitled to voir dire prospective jurors on any matter of his choosing; no line of questioning was ever disallowed.

We review the court's decision to deny Whitson a pretrial hearing under an abuse of discretion standard, meaning the decision will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the court. See Narvaiz v. State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992). In other words, if the circumstances indicate that the court's decision was "so clearly wrong as to lie outside that zone within which reasonable persons might disagree," we will find an abuse of discretion. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

Article 28.01, which allows the trial court to set any criminal case for a pretrial hearing, is not a mandatory statute, but one directed to the trial court's discretion. Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989); Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). The question of whether to hold a pretrial hearing to determine the admissibility of evidence rests within the discretion of the trial court. See id.; State v. Reed, 888 S.W.2d 117, 119 (Tex. App. San Antonio 1994, no pet.). "Even if the defendant specifically requests a pretrial hearing, no error is presented if the court declines to hear the matter." Reed, 888 S.W.2d at 119 (citing Calloway, 743 S.W.2d at 649).

Additionally, a review of the record reveals that the court's ruling on Whitson's motion for a pretrial hearing was not an arbitrary or capricious one. About twenty minutes before the venire was to be assembled, the court entertained argument from both sides on Whitson's motion for a pretrial hearing and appeared ready to delay the trial, stating, "I'm getting ready to put this thing off. I've got 20 minutes before the jury comes in." After a recess, the court denied Whitson's motion for a pretrial hearing, and agreed to decide the admissibility of the extraneous offenses later during the trial. In fact, immediately after the court denied Whitson's motion for a pretrial hearing, it granted the following portion of his Motion in Limine:

1.Questioning any witness . . . if he elects to testify about any:

. . .

d.Prior alleged assaults or sexual assaults by the Defendant against any individual.

e.Prior "bad acts" allegedly committed by the Defendant.

f.Prior conduct allegedly committed by Defendant against the alleged victim or any other person.

g.Fights, altercations, arguments and verbal and/or physical disputes between the defendant and the victim except for the incident the subject of this prosecution.

Thus, we conclude that the court did not abuse its discretion by denying Whitson's motion for a pretrial hearing on the admissibility of extraneous offenses. We overrule point two.

In point four, Whitson argues that the court abused its discretion in allowing two of the State's witnesses, who were not on the State's witness list, to testify during the punishment phase of the trial. At punishment, the State introduced four witnesses: 1) T.M., a fifteen-year-old male; 2) L.S., a twenty-one-year-old male; 3) K.R., a twenty-year-old male; and 4) the fifteen-year-old male victim. K.R. and the victim were already on the State's witness list; however, T.M. and L.S. were not. The record reflects that T.M. came forward for the first time two days before he testified. Similarly, L.S. came forward for the first time "two or three" days before he testified.

Upon request by the defense, notice of the State's witnesses should be given. Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). When a witness whose name is not on a witness list furnished to the defendant is permitted to testify, the standard of review is whether the trial court abused its discretion in allowing such witness to testify. Id. We will consider the following factors in determining whether there has been an abuse of discretion: the prosecutor's bad faith and the defendant's ability to reasonably anticipate the testimony of the witnesses. Id. Unless Whitson can show: 1) bad faith or willfulness on the part of the prosecution in failing to disclose the witnesses; or 2) that he could not have reasonably anticipated that the prosecutor would call such witnesses, the court's decision to allow the testimony will not be disturbed. Id.; Mock v. State, 848 S.W.2d 215, 222 (Tex. App. El Paso 1992, pet. ref'd); Baker v. State, 797 S.W.2d 406, 409 (Tex. App. Fort Worth 1990, pet. ref'd); see also State v. Wright, 830 S.W.2d 309, 313 (Tex. App. Tyler 1992, no pet.).

Whitson does not assert that the State had knowledge of T.M. and L.S. prior to the time they came forward. He argues, instead, that the State's failure to exercise due diligence in locating the witnesses prior to trial is tantamount to bad faith. According to Whitson, the sudden increase in the number of State's witnesses just days before trial indicates that the witnesses were easy to locate and that the State waited too long before "getting serious" about preparing for trial. However, the "bad faith" factor we consider when determining whether there has been an abuse of discretion is not whether the prosecutor used due diligence to locate a witness, but rather, whether the prosecutor "fail[ed] to disclose ahead of time the name of the witness." Stoker, 788 S.W.2d at 15 (emphasis added).

The record reflects that T.M. and L.S. were discovered at the "last minute" because they chose to come forward at that time. Further, the record does not show that their stories of abuse by Whitson were widely known. Thus, there is no indication from the record that the State could have located them any sooner. Since the State disclosed the names of the witnesses as soon as it learned of them, we conclude there is no showing of bad faith on its part.

The second factor to consider in determining whether there was an abuse of discretion is whether the defendant can reasonably anticipate that the witness would testify despite the absence of his name on any witness list. Id. However, this factor "is not, by itself, determinative of whether the trial court abused its discretion." Id. The State asserts that the existence of K.R.'s and the victim's names on the witness list should have placed Whitson on notice that other of his victims might come forward. Although the reasonable-anticipation factor is not, by itself, dispositive of our determination of whether the trial court abused its discretion in allowing T.M. and L.S. to testify, we agree with the State that notice of some witnesses is better than no notice at all.

Furthermore, at trial, the court provided Whitson the opportunity to hear the testimony of T.M. and L.S. and then cross-examine them outside the presence of the jury. Whitson also had two days in which to investigate the witnesses and prepare his cross-examination. // In light of these facts, we hold that the trial court did not abuse its discretion in allowing T.M. and L.S. to testify. We overrule point four.

In point five, Whitson argues that the court committed reversible error when it allowed the State to offer unadjudicated extraneous offenses that were not contained in its notice filed pursuant to article 37.07, 3(g), of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, 3(g). In point six, Whitson argues that the trial court abused its discretion and improperly denied his motions for continuance made during punishment because: "1) unadjudicated extraneous offense witnesses were called at punishment without timely or adequate notice; 2) the court denied a pretrial hearing; and 3) appointed counsel did not have ten days to prepare for the trial on the unadjudicated offenses." Because our discussion of points two and four addresses Whitson's contentions about how he was harmed by the admission of the extraneous offenses, and because we have determined that the court did not abuse its discretion in admitting them, we overrule points five and six.

The judgment of the trial court is affirmed.

BILL VANCE Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 6, 1995

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