James Larry Merrit v. State , 529 S.W.3d 549 ( 2017 )

Affirmed and Opinion filed July 25, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00426-CR
JAMES LARRY MERRIT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1341402
OPINION
A jury found appellant James Larry Merrit guilty of aggravated sexual assault
of a child and assessed punishment at 20 years’ imprisonment in the Institutional
Division of the Texas Department of Criminal Justice. On appeal, appellant contends
that: (1) Texas Code of Criminal Procedure article 38.072, the criminal statute
permitting admission of out-of-court statements regarding sexual abuse, is
unconstitutional; (2) the trial court reversibly erred by admitting hearsay statements
of the complaining witness through the forensic interviewer; and (3) the cost bill
charging appellant $140 for summoning witnesses and mileage is unconstitutional.
We affirm.
BACKGROUND
Appellant is the brother of the complainant’s maternal grandmother, making
him the great uncle of the complainant, Barbara.1 In February 2012, Officer Monica
Carmichael of the Houston Police Department went to Barbara’s school to talk to
Barbara because she was having difficulty contacting Barbara’s mother about
another matter. Barbara was then thirteen years old.
During their discussion, Barbara reported to Officer Carmichael that appellant
had sexually abused her. Barbara told Officer Carmichael that one day in early
January of that year, she went to her grandmother’s house after school and was
watching television in appellant’s bedroom. According to Barbara, appellant came
into the bedroom, locked the door, and “raped her” by putting his “dick” in her
vagina. Barbara told Officer Carmichael that she had not told anyone else about the
incident because she feared no one would believe her.
Officer Carmichael began investigating Barbara’s allegations. She spoke with
the complainant’s mother and grandmother, but they did not seem concerned.
Officer Carmichael also spoke to appellant, who denied abusing Barbara. As part of
the investigation, Barbara was taken to the Children’s Assessment Center (CAC) for
an interview. At the CAC, Barbara recounted to forensic interviewer Susan
Odhiambo how she had been sexually assaulted.
At trial, Barbara testified in detail about the incident and stated that appellant
not only had vaginal sex with her, but had performed oral sex on her as well. The
1
To protect the complainant’s identity, we are identifying her by a pseudonym.
2
State also presented as witnesses Officer Carmichael, Odhiambo, and Dr. Lawrence
Thompson, a licensed psychologist and a director of the CAC. 2
Appellant testified in his defense, denying Barbara’s allegations. The defense
also presented Shelyse Brooks, a family friend, who testified that Barbara told her
that she had made up the allegations against appellant. Brooks acknowledged,
however, that she never gave that information to police.
ISSUES AND ANALYSIS
In his first issue, appellant contends that Officer Carmichael’s testimony was
inadmissible because Texas Code of Criminal Procedure article 38.072 is
unconstitutional. In his second issue, appellant contends that the trial court reversibly
erred by admitting hearsay statements of Barbara through the forensic interviewer,
Susan Odhiambo. In his third issue, appellant contends that even though appellant
was found indigent during trial and on appeal, the cost bill reflects that he was
charged $140 for summoning witnesses and mileage in violation of the
Confrontation Clause and the Right to Compulsory Process.
I. The Constitutionality of Out-of-Court Statements of Sexual Abuse
In his first issue, appellant contends that Texas Code of Criminal Procedure
article 38.072 violates his constitutional right to confront and cross-examine the
witnesses against him under the Confrontation Clause of the United States
Constitution and Article I, Section 10 of the Texas Constitution. Therefore, appellant
argues, the trial court erred in admitting Officer Carmichael’s testimony concerning
2
Dr. Thompson, who did not interview Barbara, testified generally about the reasons why
abused children delay disclosing abuse, including manipulation by the abuser, fear, shame, guilt,
or a lack of family support. He also testified that children often have difficulty providing details
when they first begin discussing abuse, but over time they are often able to say more about what
happened to them.
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the complainant’s outcry statement that appellant “raped her” by putting his penis in
her vagina.
We review a trial judge’s decision on the admissibility of evidence for abuse
of discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial
judge abuses his discretion when his decision falls outside the zone of reasonable
disagreement. Id.The Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, “the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The Texas Constitution provides
a similar guarantee that “[i]n all criminal prosecution the accused . . . shall be
confronted by the witnesses against him.” Tex. Const. art I, § 10. This right extends
to “pretrial statements that declarants would reasonably expect to be used
prosecutorially.” Crawford v. Washington, 541 U.S. 36, 61 (2004).
Article 38.072 of the Code of Criminal Procedure, which applies to cases in
which the defendant is charged with certain offenses against a child under the age of
14, provides a statutory exception to the rules against hearsay. See Tex. Code Crim.
Proc. art. 38.072; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
The statute allows a complainant’s out-of-court statement to be admitted into
evidence so long as that statement is a description of the alleged offense and is
“offered into evidence by the first adult the complainant told of the offense.”
Sanchez, 354 S.W.3d at 484. A complainant’s out-of-court statement is commonly
referred to as an “outcry” and an adult who testifies about an outcry is commonly
known as an “outcry witness.” Id.The trial judge ruled that Officer Carmichael was an outcry witness for
purposes of article 38.072 and permitted her to testify about the complainant’s
outcry. As the statute requires, Barbara also testified at trial. See Tex. Code Crim.
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Proc. art. 38.072, § 2(b)(1)(C)(3). Barbara testified to what she told the officer and
the details of appellant’s assault, and she was cross-examined by defense counsel.
Appellant acknowledges that the Court of Criminal Appeals has ruled that
article 38.072 does not violate the accused’s right to confrontation under either the
federal or state constitutions. See Buckley v. State, 786 S.W.2d 357, 360 (Tex. Crim.
App. 1990); see also Beckham v. State, 29 S.W.3d 148, 152–53 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (citing Buckley and stating that article 38.072
does not violate either the due process guarantee of the United States Constitution
or the due course of law provision of the Texas Constitution). Nevertheless,
appellant seeks to preserve his argument for possible further review in light of more
recent opinions which appellant asserts focus on whether the evidence is testimonial
hearsay rather than whether the evidence offered has an “indicia of reliability.” See
Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford, 541 U.S. at 68–69.
Appellant argues that the issue should be revisited and the statute found
unconstitutional under Crawford and its progeny.
Given the controlling precedent of Buckley, however, we may not consider
appellant’s arguments. As an intermediate appellate court, we lack the authority to
overrule an opinion of the Court of Criminal Appeals. State v. DeLay, 208 S.W.3d
603, 607 (Tex. App.—Austin 2006) (citations omitted), aff’d sub. nom., Colyandro
v. State, 233 S.W.3d 870 (Tex. Crim. App. 2007); see also Mason v. State, 416
S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When
the Court of Criminal Appeals has deliberately and unequivocally interpreted the
law in a criminal matter, we must adhere to its interpretation under the dictates of
vertical stare decisis.”). This is true even when intervening developments arguably
undermine previous holdings. See DeLay, 208 S.W.3d at 605–07.
Had there not been controlling precedent, we would still overrule appellant’s
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claim of error because appellant did not timely and specifically object when the State
offered Officer Carmichael’s testimony concerning the complainant’s outcry, either
at the article 38.072 hearing or during trial. Generally, to preserve error for appellate
review, a party must make a timely and specific objection in the trial court. Tex. R.
App. P. 33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Preservation of error is a systemic requirement. Darcy v. State, 488 S.W.3d 325, 328
(Tex. Crim. App. 2016). Even constitutional rights may be forfeited if a timely and
specific objection is not made. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim.
App. 2002).
Appellant argues that his complaint may be raised for the first time on appeal
because the constitutionality of article 38.072 is a structural error that tainted the
entire trial. See Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991) (explaining that
some trial errors are “structural defects in the constitution of the trial mechanism,
which defy analysis by ‘harmless-error’ standards”). But, a defendant may not raise
for the first time on appeal a facial challenge to the constitutionality of a statute.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Further, a violation
of the right to confrontation is an error of constitutional dimension, rather than a
structural error, and is subject to a constitutional harm analysis. Langham v. State,
305 S.W.3d 568, 582 (Tex. Crim. App. 2010); see Tex. R. App. P. 44.2(a).
Accordingly, appellant has not preserved the issue for review. See Holland v.
State, 802 S.W.2d 696, 699–700 (Tex. Crim. App. 1991 (“When the State proffers
an out-of-court statement of a child witness pursuant to Article 38.072, . . . it is
incumbent upon the accused to object on the basis of confrontation and/or due
process and due course of law.”); Torres v. State, 424 S.W.3d 245, 259 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (holding appellant failed to preserve complaint
that article 38.072 violated the Confrontation Clause by failing to raise the objection
6
in trial court). We overrule appellant’s first issue.
II. The Admission of Forensic Interviewer’s Testimony
In his second issue, appellant contends that the trial court erred in admitting
hearsay and testimony that relied on hearsay from Barbara’s forensic interviewer,
Susan Odhiambo. Appellant argues that article 38.072’s hearsay exception for outcry
witness testimony does not apply to Odhiambo’s testimony because she was not the
first adult Barbara spoke to about the offense. See Tex. Code Crim. Proc.
38.072, § 2(a)(3) (requiring child’s out-of-court statements to have been made to the
first person, other than the defendant, who was 18 years of age or older).
In response to the prosecutor’s questions, and without objection, Odhiambo
agreed that she was able to establish that Barbara knew the difference between the
truth and a lie, that she had promised to tell Odhiambo “only true things,” and that
Barbara appreciated the significance and the seriousness of the situation. When the
prosecutor asked whether Barbara disclosed to Odhiambo that she had been sexually
abused, defense counsel lodged a hearsay objection. The prosecutor responded that
it was a “yes or no” question that was not asking what Barbara said. The trial court
overruled the objection. The prosecutor then proceeded to ask a series of similarly
framed questions:
Q. Okay. Was she able to give general details?
A. Yes.
Q. Okay. Was she certain as to who sexually assaulted her?
A. Yes.
Q. . . . Was she able to give you a time frame in which this abuse
happened?
A. Yes.
Q. And did she provide a location of where the act occurred?
A. Yes.
7
...
Q. Was she able to give you any sensory details?
A. Yes.
...
Q. Throughout the interview, was she consistent with where the
abuse had taken place?
A. Yes.
Q. And consistent with when the abuse had taken place?
A. Yes.
Q. And consistent with what had happened to her?
A. Yes.
Q. And who committed the abuse?
A. Yes.
Appellant argues that this testimony, including the cited testimony elicited before
defense counsel lodged his objection, was procured using leading questions relying
on the complainant’s out-of-court statements. Therefore, appellant asserts, all of the
testimony was improperly admitted because it was hearsay not subject to any
statutory or rule-based exception. See Tex. R. Evid. 802 (hearsay is inadmissible
absent exception).
Appellant did not object to the line of testimony that continued after the
objected-to testimony. As discussed above, to preserve error based on the erroneous
admission of evidence, an appellant must make a timely and specific objection.
Additionally, an objection must be made each time inadmissible evidence is offered
unless the complaining party obtains a running objection or obtains a ruling on his
complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d
680, 684 (Tex. Crim. App. 2008); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex.
Crim. App. 1991); Washington v. State, 449 S.W.3d 555, 565–660 (Tex. App.—
Houston [14th Dist.] 2014, no pet.).
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Appellant complains about the testimony that was admitted both before and
after his hearsay objection. But, because he failed to object to the testimony, obtain
a running objection, or get a ruling on his objection outside the jury’s presence,
appellant has preserved error only as to Odhiambo’s affirmative response to the
prosecutor’s question, “Did [the complainant] disclose to you that she had been
sexually abused?” We need not decide whether it was error to admit this testimony,
however, because any error was harmless.
The improper admission of hearsay testimony under article 38.072 is
nonconstitutional error that is harmless unless the error affected the appellant’s
substantial rights. See Tex. R. App. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927
(Tex. Crim. App. 2004); Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). An error is harmless if we are reasonably assured that the
error did not influence the verdict or had only a slight effect. See Garcia, 126 S.W.3d
at 927; Shaw v. State, 329 S.W.3d 645, 653 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d). Likewise, the improper admission of evidence is not reversible error if
the same or similar evidence is admitted without objection at another point in the
trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. App. 1991); Shaw,
329 S.W.3d at 653 (citing Nino, 223 S.W.3d at 754); Chapman v. State, 150 S.W.3d
809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
In Nino, this court held that any error in the admission of the forensic
interviewer’s hearsay description of the complainant’s outcry statement was
harmless when the complainant and his mother each provided substantially the same
account of the offense. 223 S.W.3d at 754. Similarly, in Chapman, this court
concluded that the improper admission of outcry testimony was harmless when the
same or similar information was admitted elsewhere at trial. 150 S.W.3d at 814–15.
And, when the objected-to witness testimony describing the complainant’s statement
9
contained far less detail than the complainant’s own testimony about the sexual
abuse, this court held any error in the admission of outcry testimony was harmless.
Shaw, 329 S.W.3d at 653–54.
As in these cases, any error in the admission of Odhiambo’s testimony about
the complainant’s out-of-court statement confirming that she had been sexually
abused was harmless, because both Barbara and Officer Carmichael testified about
the sexual abuse, and did so in much greater detail. Further, the unobjected-to portion
of Odhiambo’s testimony supported Barbara’s account. Therefore, Odhiambo’s
challenged testimony was cumulative of evidence admitted elsewhere. See id; Nino,
223 S.W.3d at 754; Chapman, 150 S.W.3d at 815; see also Duncan v. State, 95
S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding error in
admission of outcry witness’s hearsay testimony was harmless when similar
testimony was developed and offered without objection from complainant, doctor,
and medical records).
Even though the evidence was cumulative, appellant argues that he was
harmed because Odhiambo’s testimony improperly bolstered Barbara’s testimony.
According to appellant, Barbara’s testimony was not consistent with what she
recounted to Officer Carmichael or Odhiambo, because at trial she alleged for the
first time that appellant performed oral sex, which was not part of her outcry or her
forensic interview. Therefore, appellant asserts, the bolstering effect of Odhiambo’s
testimony was crucial to the State’s case because “the state needed that testimony to
offset the inconsistency.” Appellant also argues that whether Barbara fabricated the
sexual assault allegation was a theme throughout the trial and in closing arguments.
As an initial matter, appellant’s argument assumes that all of Odhiambo’s
testimony was improperly admitted. As we explained, however, appellant preserved
error only as to Odhiambo’s affirmation that Barbara told her she had been sexually
10
abused by an unnamed individual. Officer Carmichael’s testimony, while differing
in some details, supported Barbara’s testimony that she was sexually abused, and
Dr. Thompson explained the circumstances that can cause a child to delay or only
partly disclose the details of the abuse. It was for the jury to assess the credibility of
the witnesses, including appellant and defense witness Shelyse Brooks, when
weighing the evidence. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991) (stating that the factfinder can chose to believe all, some, or none of the
testimony presented by the parties). Further, the prosecutor mentioned Odhiambo’s
testimony only briefly in closing arguments.
On this record, we conclude that any error did not influence the verdict or had
only a slight effect. See Garcia, 126 S.W.3d at 921; Nino, 223 S.W.3d at 754
Chapman, 150 S.W.3d at 814–15. We overrule appellant’s second issue.
III. Unconstitutional Charge in Cost Bill
Lastly, appellant complains that the cost bill is unconstitutional because
appellant, who is indigent, was charged $140 for “Summoning Witness/Mileage.”
Appellant makes an “as applied” challenge to the constitutionality of the fees for
summoning witnesses and mileage.
Appellant argues that because he is indigent, requiring him to pay for
witnesses at his trial violates his rights to confrontation and compulsory process
guaranteed in the United States Constitution and the Texas Constitution. In addition
to providing the right to confront witnesses, the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Texas Constitution provide that
in all criminal prosecutions, an accused shall have the right to compulsory process
for obtaining witnesses in the accused’s favor. U.S. Const. amend. VI; Tex. Const.
art. I, § 10; see also Tex. Code Crim. Proc. art. 1.05 (“In all criminal prosecutions
the accused . . . shall be confronted with the witnesses against him, and shall have
11
compulsory process for obtaining witnesses in his favor.”).
The Code of Criminal Procedure provides that defendants convicted of a
felony or misdemeanor must pay fees for various services performed in the case by
a peace officer, including $5 for summoning a witness, and 29 cents per mile for
mileage required of an officer to perform, and to return from performing, a listed
service, including “traveling to execute criminal process, to summon or attach a
witness, and to execute process.” See Tex. Code Crim. Proc. art. 102.011(a)(3), (b).
The statute imposes the fees regardless of whether the costs for subpoenas and
mileage are incurred by the State or the defense.
An “as applied” challenge to the constitutionality of a statute asserts that a
statute, although generally constitutional, operates unconstitutionally as to the
claimant because of his particular circumstances. Faust v. State, 491 S.W.3d 733,
743 (Tex. Crim. App. 2016); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.
Crim. App. 2011). When reviewing the constitutionality of a statute, we presume
that the statute is valid and that the Legislature acted reasonably in enacting it. Faust,
491 S.W.3d at 743–44.
Because a statute may be valid as applied to one set of facts and invalid as
applied to a different set of facts, a litigant must show that, in its operation, the
challenged statute was unconstitutionally applied to him; that it may be
unconstitutional as to others is not sufficient or relevant. Lykos, 330 S.W.3d at 910.
An “as applied” challenge is brought during or after a trial on the merits, because
only then will the trial judge and reviewing courts have the particular facts and
circumstances of the case needed to determine whether the statue or law has been
applied in an unconstitutional manner. Id.Appellant argues that requiring an indigent defendant to pay for the State to
subpoena its own witnesses against him is “unfair and unconstitutional.” Appellant
12
points to Cardenas v. State, in which the Court of Criminal Appeals noted that
“[c]onvicted defendants have constructive notice of mandatory court costs set by
statute.” 423 S.W.3d 396, 399 (Tex. Crim. App. 2014). According to appellant,
because he is indigent, this constructive notice of the costs hindered his rights.
Appellant argues that as applied to him, he cannot bear the costs associated with the
defense of his constitutional rights to confrontation and compulsory process.
As an initial matter, we note that appellant was declared indigent before trial
and he is “presumed to remain indigent for the remainder of the proceedings in the
case unless a material change in the defendant’s financial circumstances occurs.”
London v. State, 490 S.W.3d 503, 509 (Tex. Crim. App. 2016) (quoting Tex. Code
Crim. Proc. art. 26.04). The State does not contend on appeal that a material change
in appellant’s financial circumstances has changed. Therefore, on this record, the
fact and degree of appellant’s indigence is established. See id. at 509–10.
“[T]o exercise the right to compulsory process, the defendant bears the burden
to ‘make a plausible showing to the trial court, by sworn evidence or agreed facts,
that the witness’ testimony would be both material and favorable to the defense.’”
London v. State, No. 01-13-0441-CR, ___ S.W.3d ___, 2017 WL 2779907, at *2
(Tex. App.—Houston [1st Dist.] June 27, 2017, no pet. h.) (quoting Coleman v.
State, 966 S.W.2d 525, 528 (Tex. Crim. App. 1998)); see London, 490 S.W.3d at
508 (stating that the appealing party generally carries the burden to ensure that the
record on appeal is sufficient to resolve the issues presented and failure to provide a
sufficient appellate record precludes appellate review of a claim). On appeal,
appellant has not identified any material and favorable witnesses he was prevented
from presenting at trial. Indeed, the record reflects that appellant issued a subpoena
for one witness, Shelyse Brooks, who appeared and testified for the defense. Without
a showing that other material, favorable witnesses were available but not called by
13
appellant due to his constructive notice of the witness and mileage fees, we cannot
conclude that the $5 witness fee operated to deny his right to have compulsory
process for obtaining witnesses in his favor. See London, 2017 WL 2779907, at *2.
Appellant also fails to demonstrate how the statutory fees impaired his right
to confront and cross-examine the witnesses against him. See id. at *2–3. Appellant
provides no argument or legal analysis to support his position other than the
conclusory assertion that to require an indigent defendant like him to shoulder the
responsibility for summoning witnesses, including those called by the State, is
“unfair and unconstitutional.” Significantly, the statutory fees are assessed only if,
and when, a defendant is convicted. See Tex. Code Crim. Proc. art. 102.011(a). Thus,
appellant’s inability to pay the postjudgment fees could not have prevented him from
confronting any witnesses at trial, before the fees were assessed. See London, WL
2779907, at *4 (rejecting similar argument and concluding that appellant’s
“opportunity to confront or cross-examine the State’s witnesses was not contingent
on his postjudgment ability to pay the witness fees”).
On this record, appellant has not met his burden to show that his constructive
notice that if convicted he would be assessed the witness and mileage fees had the
actual effect, as applied to him, of denying him compulsory process or confrontation
of the witnesses against him. See id. at *4–5; see also Lykos, 330 S.W.3d at 910.
CONCLUSION
We overrule appellant’s issues and affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Brown, and Wise.
Publish — TEX. R. APP. P. 47.2(b).
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