Andrew Debbs v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00135-CR
ANDREW DEBBS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F40146
MEMORANDUM OPINION
Andrew Debbs was convicted of five counts of aggravated sexual assault and
three counts of indecency with a child. TEX. PENAL CODE ANN. §§ 22.021, 21.11 (Vernon
2003 & Supp. 2008). He was sentenced to life in prison on each count. Because the trial
court did not err in overruling his Batson challenge and did not err in finding the child
victim competent to testify, and because the evidence was factually sufficient to support
Debbs’s convictions, the trial court’s judgment is affirmed.
FACTUAL BACKGROUND
V.H. was five years old in February of 2006 when she and her mother, Tabitha,
moved in with her “nanny,” Gail, and her nanny’s boyfriend, Debbs. In April of 2006,
V.H.’s uncle, Zachariah, who had also moved into the house, noticed something
peculiar. He walked by Debbs’s room and noticed him sitting in a chair with V.H.
standing about 6 inches in front of Debbs’s knees, which were spread apart. Debbs was
wearing a pair of cut-off sweats and an open bathrobe. Because V.H. had been sexually
assaulted before, Zachariah asked Tabitha to speak with V.H. When Tabitha asked V.H.
if anyone had touched her, V.H. responded, “Tell my Nanny [Debbs] is going to have to
get out.” V.H. then confirmed that Debbs touched her “no-no spots,” a phrase used to
mean her vagina, bottom, and breasts.
Tabitha called 9-1-1 and a sheriff’s deputy was dispatched to the house. V.H.
was taken to the Child Advocacy Center where she made a statement about the assaults
by Debbs. A few days later, V.H’s father, Mathew, took V.H. to Cook Children’s
Medical Center for an evaluation by the CARE team, which is a child abuse program.
While being evaluated, V.H. stated that “…[Debbs] touched me where the bad spot
is…He touched me with his hand. He touched my bad spot with the boy’s bad spot.
He touched it a lot of times. The last time was last week…he touched my butt with his
bad spot….” Also during the evaluation, V.H. pointed to the genitals of a female child
anatomical drawing and said that was where Debbs touched her. She also indicated
that the “bad spot” on the male child anatomical drawing was the genitals. The only
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physical evidence of possible abuse found by the CARE team was redness around
V.H.’s anus. The redness could also be attributed to poor hygiene.
V.H. testified at trial. She was 7 years old at that time. She stated that Debbs
touched her in her “bad spots.” She said that Debbs’ bad spot, or genitals, touched her
bad spot, or genitals.1 She also stated that Debbs touched her bad spot with his hand
and touched her “butt” with his bad spot. She further stated that Debbs touched her
“chichis,“ or breasts, with his hand and his mouth. She said that each incident
happened more than once.
BATSON CHALLENGE
In his first issue on appeal, Debbs contends that the trial court erred in
overruling his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986). Prior to the jury being empanelled, Debbs made a Batson challenge
and informed the trial court that one of two black members of the jury panel was struck
by the State. Debbs had informed the trial court prior to voir dire that there were two
black jurors on the panel and that Debbs was black. Although the State minimally
protested at the time of the Batson challenge that the juror who was struck was black,
the State did not dispute the earlier representation by Debbs to the trial court about that
particular juror. Further, when asked for a response, the State offered a race-neutral
reason for its strike. The trial court accepted the State’s reason.
1 V.H. also called this her “private spot.”
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Three-step Process
Batson provides a three-step process for a trial court to use in adjudicating a
claim that a peremptory challenge was based on race. Snyder v. Louisiana, ___ U.S. ___,
128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008). "'First, a defendant must make a prima
facie showing that a peremptory challenge has been exercised on the basis of race[;
s]econd, if that showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question[; and t]hird, in light of the parties' submissions, the
trial court must determine whether the defendant has shown purposeful
discrimination.'" Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 277, 125 S. Ct. 2317, 162
L. Ed. 2d 196 (2006) (Thomas, J., dissenting)). The exclusion of even one member of
appellant's race from the jury panel for racial reasons invalidates the entire jury
selection process. See Snyder, 128 S. Ct. at 1208.
If the opponent of a challenged strike raises a question of purposeful
discrimination and the trial court proceeds immediately to the State’s race-neutral
reasons for the strike, a reviewing court assumes that the opponent has satisfied the first
step of the Batson process. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008)
(citing Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)).
The second step of the process does not demand an explanation that is persuasive, or
even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995).
The issue is the facial validity of the prosecutor’s explanation. Id. Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will
be deemed race neutral. Id. (quoting Hernandez, 500 U.S. at 360.
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It is not until the third step that the persuasiveness or the justification of the
strike becomes relevant. Id. “At that stage, implausible or fantastic justifications may
(and probably will) be found to be pretexts for purposeful discrimination.” Id. The
prosecutor’s proffered reasons for striking an individual must be evaluated in light of
the circumstances of the case. See Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. 1203, 1210,
170 L. Ed. 2d 175 (2008). On appeal, a trial court's ruling on the issue of discriminatory
intent must be sustained unless it is clearly erroneous. Snyder, 128 S. Ct. at 1207; Watkins
v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008).
The State does not dispute that Debbs satisfied his step-one obligation to make a
prima facie showing that the State exercised its peremptory challenge on the basis of
race. In offering its race neutral reason for striking the juror, the State explained to the
trial court that the juror in question was under the age of 30 and that the State struck all
jurors under the age of 30. Debbs did not dispute, and there is nothing in the record
that disputes, the State’s reason for striking the juror or the assertion that all jurors
under the age of 30 were struck. Thus, the trial court did not clearly err in accepting the
State’s race-neutral reason for striking that juror.
Debbs additionally argues on appeal that the State exercised purposeful
discrimination when it chose not to use all of its peremptory strikes and thus did not
seat the only other black juror on the panel. Debbs did not challenge the State’s non-use
of its peremptory strikes in the trial court. This argument is not preserved. See TEX. R.
APP. P. 33.1.
Debbs’s first issue is overruled.
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COMPETENCY OF WITNESS
Debbs contends in his second issue that the trial court erred in finding V.H.
competent to testify.
Texas Rule of Evidence 601(a)(2) places the power to determine a child witness's
competency into the hands of the trial judge. Broussard v. State, 910 S.W.2d 952, 960
(Tex. Crim. App. 1995); TEX. R. EVID. 601(a)(2). A ruling by the trial court will not be
disturbed upon review unless an abuse of discretion is shown. Id. Under Rule 601, a
child is considered competent to testify unless it appears to the court that he does not
possess sufficient intellect to relate the transaction about which she will testify. Id. The
ability to relate encompasses both "an ability to understand the questions asked and to
frame intelligent answers" as well as "a moral responsibility to tell the truth." Watson v.
State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980). In determining whether there has
been an abuse of discretion, we review the entire testimony of the witness in addition to
that given in the hearing on competency. Clark v. State, 558 S.W.2d 887, 890 (Tex. Crim.
App. 1977).
It appears from the record that prior to the start of the trial, the State called V.H.
to the stand to address both the competency issue and an outcry issue. After the court
administered the oath to V.H., the prosecutor asked V.H. a series of questions.
Although she could not recall what year she was born, V.H. successfully answered
questions concerning her name, birthday, current age and age next year, and with
whom she lived at the time of the assaults. She said that she knew the difference
between telling the truth and telling a lie. The prosecutor explored V.H.'s ability to
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distinguish the truth from a lie by asking, "If I were to say to you that this board is
green, would that be the truth or would that be a lie?" V.H. correctly answered that it
would be a lie because it had been established earlier that the board was white. The
prosecutor also asked V.H. if she thought she could tell the truth and if she promised to
tell the truth. V.H. answered affirmatively to both questions.
Further, we have reviewed the body of V.H.'s testimony, and it demonstrates
that V.H. was able to both understand questions asked of her and intelligently frame
answers to those questions. And although she could not recall all the details of the
assaults, she could recall and relate that Debbs improperly touched her and where she
was touched. Considering V.H.'s responses to the prosecutor’s qualification questions
as well as her testimony as a whole, we hold that the trial court did not abuse its
discretion by finding V.H. competent to testify.
Debbs’s second issue is overruled.
SUFFICIENCY OF THE EVIDENCE
Debbs further contends that the evidence is factually insufficient to support his
convictions.
The factual sufficiency of the evidence standard of review has been restated by
the Court of Criminal Appeals in Grotti v. State:
In a factual-sufficiency review, the evidence is reviewed in a neutral light.
Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson
v. State, 23 S.W.3d at 7. Only one question is to be answered in a factual-
sufficiency review: Considering all of the evidence in a neutral light, was
a jury rationally justified in finding guilt beyond a reasonable doubt?
Watson, 204 S.W.3d at 415. Evidence can be factually insufficient in one
of two ways: (1) when the evidence supporting the verdict is so weak that
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the verdict seems clearly wrong and manifestly unjust; and (2) when the
supporting evidence is outweighed by the great weight and
preponderance of the contrary evidence so as to render the verdict clearly
wrong and manifestly unjust. Roberts, 220 S.W.3d at 524 (citing Watson,
204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11); see also Castillo v. State, 221
S.W.3d 689, 693 (Tex. Crim. App. 2007). "[A]n appellate court must first
be able to say, with some objective basis in the record, that the great
weight and preponderance of the . . . evidence contradicts the jury's
verdict before it is justified in exercising its appellate fact jurisdiction to
order a new trial." Watson, 204 S.W.3d at 417. A reversal for factual
insufficiency cannot occur when "the greater weight and preponderance
of the evidence actually favors conviction." Roberts, 220 S.W.3d at 524.
Although an appellate court has the ability to second-guess the jury to a
limited degree, the factual-sufficiency review should still be deferential,
with a high level of skepticism about the jury's verdict required before a
reversal can occur. Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 410.
Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).
Debbs argues the evidence was factually insufficient because V.H.’s testimony
was inconsistent and the inconsistencies impeached her credibility. The inconsistencies
about which he complains were whether V.H. slept in her own room or with her mother
or “nanny,” whether she was wearing clothes when the assaults occurred or whether
Debbs pulled off her clothes, and whether Debbs spoke to her at all during the assaults.
He also points to the lack of information contained in the records from the CARE team
about V.H.’s outcry that Debbs touched and kissed her breast as an inconsistency in
V.H.’s testimony. Debbs also argues the evidence is factually insufficient because V.H.
made a similar outcry against a 13 year old neighbor only 4 months earlier, no scientific
evidence was presented to suggest that V.H’s weight gain and nightmares, which her
father said were developments since V.H. moved in with her nanny, were caused by the
incidents with Debbs, and no physical evidence of abuse of V.H. was found.
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Considering all of the evidence in a neutral light, we do not find the evidence
supporting the verdict was so weak that the verdict seemed clearly wrong and
manifestly unjust; nor do we find that the supporting evidence is outweighed by the
great weight and preponderance of the contrary evidence so as to render the verdict
clearly wrong and manifestly unjust. Accordingly, the jury was rationally justified in
finding Debbs’s guilt beyond a reasonable doubt.
Debbs’s third issue is overruled.
CONCLUSION
Having overruled each issue presented, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 5, 2009
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