Curtis Lee Bass v. State ( 2009 )

Affirmed and Memorandum Opinion on Remand filed June 18, 2009

Affirmed and Memorandum Opinion on Remand filed June 18, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-05-00865-CR

NO. 14-05-00866-CR

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CURTIS LEE BASS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1003554 & 1003555

M E M O R A N D U M   O P I N I O N   O N   R E M A N D

This case is before the court on remand from the court of criminal appeals.  See Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).   On appeal from his conviction of two counts of indecency with a child, appellant initially raised the following four issues:  (1) whether the trial court erred by admitting evidence of extraneous offenses in violation of the Texas Rules of Evidence and due process, (2) whether the evidence was legally and factually insufficient to sustain his conviction, (3) whether the trial court erred by excluding testimony that the complainant in the present case, S.D., had falsely accused another man of rape, and (4) whether the trial court erred by excluding evidence that a grand jury had no-billed one of the extraneous offenses at issue.  In our original opinion, we held the evidence was legally sufficient to support appellant=s conviction, but reversed and remanded, concluding that the trial court had abused its discretion by admitting the extraneous-offense evidence. Bass v. State, 222 S.W.3d 571, 578B79, 580 (Tex. App.CHouston [14th Dist.] 2007), rev=d, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The court of criminal appeals disagreed, holding the trial court had not abused its discretion in admitting the extraneous-offense evidence because the evidence was admissible to rebut appellant=s defensive theories that (1) the complainant had fabricated her allegations against him and (2) appellant would not engage in this type of behavior.  270 S.W.3d at 563.  The court remanded this case Afor further proceedings consistent with this opinion.@  Id. at 564.

We now dispose of the remaining issues.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Analysis^[1]

A.        Issue One:  Admission of Extraneous Offense Evidence as a Due Process Violation

As part of issue one, appellant complains that admission of extraneous offense evidence violated his right to due process.  As discussed above, the court of criminal appeals held the evidence was relevant to appellant=s defensive theories; therefore, the trial court did not abuse its discretion.  Because the evidence was admissible to rebut appellant=s contention that the complainant was fabricating and appellant was not the type of person who would engage in such acts, admission of the evidence did not violate appellant=s due process rights.  See Phelps v. State, 5 S.W.3d 788, 790B92, 798 (Tex. App.CSan Antonio 1999, pet. ref=d) (holding admission of evidence of extraneous offenses against defendant=s ex-wife and thirteen-year-old child victim of offense at issue did not violate defendant=s due process rights given defendant=s evidence appellant was passive and his wife at time of offense was source of victim=s testimony).

Pursuant to instructions from the court of criminal appeals, and for the foregoing reasons, we overrule appellant=s first issue.

B.        Issue Two: Legal and Factual Sufficiency of the Evidence

In issue two, appellant argues the evidence was legally and factually insufficient to support his conviction.  In our previous opinion, we concluded the evidence was legally sufficient.  See Bass, 222 S.W.3d at 579B80.  We do not repeat that discussion here.

In conducting a factual sufficiency review, we begin with the presumption the evidence is legally sufficient under Jackson v. Virginia, 443 U.S. 307 (1979).  Conner v. State, 67 S.W.3d 192, 198 (Tex. Crim. App. 2001).  We then consider all of the evidence in the record, comparing evidence that tends to prove the existence of an elemental fact in dispute to the evidence that tends to disprove it.   Id.  We are authorized to disagree with the jury=s determination even if probative evidence exists which supports the verdict, but must avoid substituting our judgment for that of the fact‑finder.  Id.  Before we may reverse for factual insufficiency, we must first conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  As the court of criminal appeals explained:

Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence.  AThe difference between the two standards is that the former requires the reviewing court to defer to the jury=s credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury=s on these questions >albeit to a very limited degree.=@ In reality, a Afactual‑sufficiency review is >barely distinguishable= from a Jackson v. Virginia legal sufficiency review.@

Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (citations omitted).

Appellant does not argue the evidence is factually insufficient to support any particular element of the offense of indecency with a child.  Instead, he argues the complainant was not credible.

Appellant first questions S.D.=s credibility because she waited ten years to report the incidents.  However, at trial, expert Dr. Judy Rambur testified that the child would have self-doubts and feel like no one would believe her if she reported it to school administrators who told her the story was not credible.  We conclude the jury could have reasonably relied on this testimony as a credible explanation for S.D.=s ten year delay in reporting the two incidents to the police.

Appellant next argues the Apage that references the June 23, 1994 incident@ is different from other pages in S.D.=s journal.  Appellant=s argument on this point is somewhat unclear because the two incidents occurred on February 23, 1994 and June 7, 1994, respectively.  The journal is written in both cursive and print, varying from entry to entry and within entries.  The majority of the entries include the date, day of the week, and time of entry.  The majority are also written horizontally on the lines of the notebook paper.  In addition, S.D. referred to date-specific events, thus lending to the credibility of the journal.  For example, S.D. wrote about attending an Oilers= game on Sunday, September 20, 1992 and a concert at the Houston Rodeo on March 2, 1994 (even pasting the ticket stubs in the journal), and about the Rockets= winning the championship on June 22, 1994.  We conclude the jury could have reasonably found the journal reliable.

Appellant also asserts the November 16, 1994 journal entry does not specify appellant touched her vaginal area.  However, this entry contains a description of the events surrounding the confrontation in the school administrator=s office with details described by S.D. to the administrators.  Specifically, she wrote they asked her where on her body appellant touched her and she motioned with her hands toward her chest, to which an administrator said, Ayour breast.@  Because the journal entry focused on what happened in the school administrator=s office, rather than on the assaults themselves, we conclude the jury could have believed the reliability of the journal even though there was no reference to appellant=s touching S.D.=s vaginal area.

Finally, appellant refers to S.D.=s inaccurate description of appellant=s church office and the fact that she told the press she had remained Asilent@ after the incidents when, in fact, she later told some family members and close friends. Although both of these examples may have affected S.D.=s credibility, the jury chose to believe S.D.

After reviewing all of the evidence in the record, we cannot conclude the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Watson, 204 S.W.3d at 417.  Accordingly, we conclude the evidence is factually sufficient.

We overrule appellant=s second issue.

C.        Issues Three and Four:  Exclusion of Defense Evidence

In issue three, appellant complains the trial court erred by excluding testimony the complainant, S.D., had falsely accused another man of sexual assault; in issue four, by excluding evidence a grand jury had no-billed one of the extraneous offenses at issue.  We review a trial court=s decision to admit or exclude evidence for abuse of discretion.  Scott v. State, 222 S.W.3d 820, 823 (Tex. App.CHouston [14th Dist.] 2007, no pet.)  We will not disturb the trial court=s ruling unless it falls outside the Azone of reasonable disagreement.@  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991); Scott, 222 S.W.3d at 823.

Moreover, as a prerequisite to presenting a complaint for appellate review, the record must show the party Astated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint.@  Tex. R. App. P. 33.1; Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005).  It is not enough to tell the judge evidence is admissible.  Reyna, 168 S.W.3d at 177.  The proponent, if he is the losing party, must have told the judge why the evidence was admissible.  Id.  The complaining party on appeal must have brought to the trial court=s attention the very complaint that party is now making on appeal.  Id.  Stated differently, appellant=s issue on appeal must comport with his objection at trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  

False accusation evidence.  In issue three, appellant contends the trial court erred and violated his Sixth Amendment right to confrontation by excluding testimony S.D. had falsely accused another man of rape.  See U.S. Const. Amend. VI.  Appellant=s complaint on appeal, however, does not comport with his complaint in the trial court.  In making a bill on the record regarding exclusion of the testimony, appellant=s counsel stated:

Denying Curtis Bass, Your Honor, effective assistance under the Sixth Amendment, Article 1, Section 10 of the Texas Constitution.  It also denies him due process and due course of law under Article 1, Section 15 and due process under Article 1, Section 19 of the Texas Constitution.  For that reason, we object to the Court preventing us from introducing that relevant evidence.

Appellant did not proffer the evidence pursuant to the confrontation clause of the Sixth Amendment.  Instead, appellant stated his proffer was based on Aeffective assistance under the Sixth Amendment.@  Appellant=s issue on appeal does not comport with his objection at trial.  We therefore overrule appellant=s third issue.

No-bill for one of the extraneous offenses.  In issue four, appellant contends the trial court erred by excluding evidence a grand jury had no-billed the extraneous offense alleged by R.C.  We disagree.

Appellant concedes no-billed conduct is admissible as an extraneous offense.  See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996) (regarding admissibility at punishment phase).  Nevertheless, he argues evidence a grand jury chose not to indict should also be admitted, contending, AIt was incumbent on the State to offer evidence which it believed beyond a reasonable doubt.@  In support, he cites George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994).

Appellant=s reliance on George is misplaced. The George court held Athe trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense@ if the defendant requests jury instructions as to extraneous offense evidence at the guilt/innocence phase of the trial.  Id.  The holding in George addresses how to instruct the jury to weigh the evidence, not the standard for admission of extraneous offense evidence.^[2]

The duty of a grand jury is to determine whether evidence exists to charge a person formally with an offense.  See Rachal, 917 S.W.2d at 807.  AA Grand Jury=s no-bill is merely a finding that the specific evidence brought before the particular Grand Jury did not convince them to formally charge the accused with the offense alleged.@  Id.  In Smith v. State, the court of criminal appeals held a prior no-bill for the charged offense was not material in any way to the defense of a case and evidence of a grand jury=s once having no-billed the charged offense was properly excluded.   474 S.W.2d 486, 489 (Tex. Crim. App. 1971).  Just as the trial court properly excluded evidence of a prior no-bill of the charged offense in Smith, the trial court in the present case properly excluded evidence of the no-bill of the extraneous offense.

We therefore overrule appellant=s fourth issue.

II.  Conclusion

Consistent with the holding of the court of criminal appeals and having overruled appellant=s remaining issues, we affirm the judgment of the trial court.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The factual and procedural background have been set forth in large part in this court=s previous opinion and that of the court of criminal appeals.  See Bass v. State, 222 S.W.3d 571, 573B74, 579B80 (Tex. App.CHouston [14th Dist.] 2007), rev=d, 270 S.W.3d 557 (Tex. Crim. App. 2008); see also Bass v. State, 270 S.W.3d 557, 557B62 (Tex. Crim. App. 2008).  We set forth additional facts necessary to our analysis.

^[2]  We note the trial court gave the following limiting instruction after the testimony of each of the two extraneous-offense witnesses:

Members of the jury, regarding the testimony concerning the defendant=s involvement in another act, you cannot consider such testimony for any purpose unless you first find from the testimony presented beyond a reasonable doubt that the defendant committed these other acts, if any.

Therefore, if the State has not proven the defendant=s involvement in those other acts, if any, beyond a reasonable doubt or if you have a reasonable doubt of the defendant=s involvement, you shall not consider this testimony for any purpose.