Charles Edward Hareter v. State , 435 S.W.3d 356 ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00222-CR
CHARLES EDWARD HARETER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 62,982-E, Honorable Douglas Woodburn, Presiding
May 30, 2014
OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Charles Edward Hareter appeals his conviction for five counts of
possession or promotion of child pornography.1 A jury found appellant guilty and
assessed punishment at five years’ confinement in prison for each count. By order of
the trial court, the sentences for counts one through three run concurrently and upon
their completion the sentences for counts four and five begin and run consecutively.
We will affirm.
1
See TEX. PENAL CODE ANN. § 43.26 (West Supp. 2013).
Background
Testimony showed appellant’s wife discovered a computer thumb drive in the
clothes dryer at their residence. Her son, who is appellant’s stepson, and his family
were temporarily living with appellant and his wife. Appellant’s wife brought her
discovery to the attention of the stepson, who works with computers and has a
background in law enforcement. The stepson opened the portable storage device using
appellant’s computer and discovered pornographic images of children. He telephoned
police.
Meanwhile appellant, age sixty-eight, was asleep. When police arrived he was
awakened by the stepson. In the presence of the stepson and police, appellant
acknowledged ownership of the thumb drive. He further acknowledged a statement by
the stepson, “You understand this is kids.” Later that night, at the police station,
appellant told an interrogating officer the thumb drive contained images of females,
ages five to ten years, exhibiting their genitals in a suggestive manner. According to the
officer, appellant admitted he “saved images of children who lack pubic hair, who lack
breasts, who were in an undressed state, exhibiting their genitalia, the vagina, the
breasts.”
A detective and an investigator viewed the contents of the thumb drive and
identified five images they believed were child pornography. These five images were
copied onto a disk which was admitted into evidence at trial. Each image on the disk
was the subject of a separate count in the indictment. According to the detective, the
thumb drive contained an estimated 250 images of child pornography.
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Analysis
By his first issue, appellant argues the trial court commented on the weight of the
evidence while it received into evidence a letter written from jail by appellant to his wife.
Specifically, appellant argues “the trial judge in open court told the jury the letter
contained a confession: ‘the [Appellant] in this letter has admitted the commission of the
offense.’”
Elsewhere in his brief appellant recites further record excerpts placing the
highlighted excerpt in context. Outside the presence of the jury appellant’s counsel
argued the letter lacked relevance, was improper evidence of character, and was more
prejudicial than probative. The jury returned, the letter was authenticated and offered,
and appellant’s objections were renewed and overruled. This exchange followed.
[Defense Counsel]: The—Your Honor, may I have a limiting instruction
with regard to this exhibit?
The Court: And your instruction would be?
[Defense Counsel]: That it would be limited not to the—for the purpose of
showing that the letter transpired, but it does not go to the issue of proof
on guilt/innocence.
[The Prosecutor]: Judge, if I may by (sic) heard? I believe that the content
being offered is it would invade the province of the jury. That’s an issue
for the jury to decide.
[Defense Counsel]: Well, I agree, Judge, for the jury to decide, but it has
to have a limiting instruction as to what—what purpose is he admitting—
The Court: All right. I’ll admit it for the purpose of establishing that the
Defendant in this letter has admitted the commission of the offense, if you
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believe that’s true. And so as a—a statement that is consistent with
admission of the commission of the offense.
[Defense Counsel]: Your Honor, I object to that instruction because I think
the letter speaks for itself. It should be limited to what is in that letter.
[Defense Counsel]: And—
The Court: --the question is does that letter constitute an admission on the
part of the Defendant, and that’s for the jury to decide. And I will limit
them to reviewing this letter to determine if, in fact, it does constitute an
admission by the Defendant. And if you feel that it does, you may
consider that in your verdict. If you feel that it doesn’t establish an
admission on his part, then you won’t consider it. And that is my ruling to
you.
[Defense Counsel]: And I object to that instruction as not being complete.
And I also further object that it constitutes a comment on the weight of the
evidence.
***
[Defense Counsel]: It would be more complete if they would limit it to the
purpose for which he is admitting it and it does not show that he’s guilty of
the—what he's charged with.
The Court: All right. I’ll overrule the request. And it is admitted for the
limited purpose to determine if you feel that it does constitute an
admission on his part, and that’s—that is my limiting instruction.
***
The Court: The exhibit is admitted, subject to the limiting instruction that
I’ve given you.
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Article 38.05 of the Code of Criminal Procedure provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall
simply decide whether or not it is admissible; nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.
TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979). The trial court must withhold any
comment before the jury calculated to convey its opinion of the case. Brown v. State,
122 S.W.3d 794, 798 (Tex. Crim. App. 2003). It is axiomatic that “jurors are prone to
seize with alacrity upon any conduct or language of the trial judge which they may
interpret as shedding light upon his view of the weight of the evidence, or the merits of
the issues involved.” Id.
The trial court improperly comments on the weight of the evidence if it makes a
statement that implies approval of the State’s argument, indicates disbelief in the
defense’s position, or diminishes the credibility of the defense’s approach to the case.
Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). Applying this
standard, we first examine whether the challenged remarks, made by the trial judge
during trial, were improper comments on the weight of the evidence.
The statement appellant challenges is not a comment on the weight of the
evidence. It did not express or imply approval of the State’s position. Rather the
instruction allowed the jury to decide whether the letter contained an admission of guilt
by appellant, or did not contain such an admission. Being so qualified, the instruction
could not be an expression of the court’s view of how the jury should resolve the issue.
See Easter v. State, 867 S.W.2d 929, 941 (Tex. App.—Waco 1993, pet. refused)
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(“Because the court used the phrases ‘if any were committed’ and ‘if any,’ the instruction
does not constitute a comment on the weight of the evidence”). Moreover, the court’s
instruction, given at appellant’s request, limited the availability of the letter for
consideration by the jury. We hardly see how an instruction benefiting an accused can,
at the same time, amount to a comment on the weight of the evidence benefiting the
State. See Bell v. State, 768 S.W.2d 790, 798 (Tex. App.—San Antonio 1989, pet.
refused) (noting a comment on the weight of the evidence benefits the State or
prejudices the accused’s rights and holding since the instruction was given for the
benefit of the accused it could not be the basis of a complaint by the accused).
Appellant’s first issue is overruled.
In his second issue, appellant argues his due process right to a fair trial was
denied when the court admitted the thumb drive containing 250 extraneous offenses.
Appellant lodged several objections to admission of the thumb drive but did not
raise the due process complaint here urged. Issues on appeal must correspond or
comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235,
241 (Tex. App.—Texarkana 2005, pet. refused) (citing Dixon v. State, 2 S.W.3d 263,
273 (Tex. Crim. App. 1998)). “Where a trial objection does not comport with the issue
raised on appeal, the appellant has preserved nothing for review.” Id.; see Tex. R. App.
P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant “did not
fairly and specifically object to the exclusion of this evidence on the constitutional due
process basis he now urges on appeal.” Id. Accordingly nothing is preserved for our
review. TEX. R. APP. P. 33.1(a). Appellant’s second issue is overruled.
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By his third issue appellant contends he suffered egregious harm because the
jury charge allowed convictions on less than unanimous verdicts.
We first consider whether the trial court committed charge error as appellant
asserts. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Should we find
error, we then determine whether appellant was harmed to a degree warranting
reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
In the face of a proper objection to charge error, we will reverse on a finding of “some
harm” to the defendant. Id. Absent a proper objection, we reverse only if the record
shows the defendant sustained “egregious harm.” Id. Because appellant did not raise
the objection to the charge in the trial court he now urges on appeal, we must determine
whether the trial court erred, and if it did whether the resulting harm to appellant was
egregious. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The
failure to preserve jury-charge error is not a bar to appellate review, but rather it
establishes the degree of harm necessary for reversal”). Egregious harm results from
charge error that affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex.
Crim. App. 2007). This is a difficult standard to meet and requires the record disclose
actual rather than theoretical harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013). If we find charge error, the egregious harm analysis requires we consider
the entire jury charge, the state of the evidence (including the contested issues and the
weight of probative evidence), the arguments of counsel, as well as all other relevant
information shown by the record. Nava, 415 S.W.3d at 298. A defendant has a
valuable right to a unanimous verdict in a felony case. Ngo, 175 S.W.3d at 750-52. We
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presume the jury followed the trial court’s instructions contained in the charge.
Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003).
A person commits the offense of possession or promotion of child pornography
under Penal Code section 43.26(a) if the person knowingly or intentionally possesses
visual material that visually depicts a child younger than 18 years of age at the time the
image of the child was made who is engaging in sexual conduct and the person knows
that the material depicts the child as described in section 43.26(a)(1). TEX. PENAL CODE
ANN. § 43.26(a)(1),(2) (West Supp. 2013). Visual material includes any disk, diskette, or
other physical medium that allows an image to be displayed on a computer. TEX. PENAL
CODE ANN. § 43.26(b)(3) (West Supp. 2013). As used in § 43.26, the meaning of
“sexual conduct” includes actual or simulated sexual intercourse, deviate sexual
intercourse, and lewd exhibition of the genitals. TEX. PENAL CODE ANN. § 43.25(a)(2)
(West 2011).
Here, the indictment alleged five counts of possession of child pornography
under section 43.26(a). The visual depiction alleged by count one was deviate sexual
intercourse. Counts two, three, and four alleged lewd exhibition of the genitals. Count
five alleged actual sexual intercourse. During the detective’s trial testimony the five
images, each corresponding to one count in the indictment, were shown to the jury via
power point. As an image was presented, the detective described the conduct shown.
He opined whether it amounted to deviate sexual intercourse, lewd exhibition of the
genitals, or actual sexual intercourse. The charge contained five independent
application paragraphs, each expressly corresponding to a count in the indictment. The
court supplied five verdict forms for the jury, each correlating to a specific numbered
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count and each requiring the jury to determine whether appellant was guilty or not guilty
of the conduct alleged in the referenced count. The charge instructed the jury that
before it could return a verdict of guilty or not guilty “all twelve jurors must agree upon
the verdict.”
Appellant urges that our decision is guided by Ngo. We disagree. The
application paragraphs in Ngo were presented in the disjunctive without requiring
unanimity so that all twelve jurors would immediately realize that they had to agree on
one specific paragraph which set out one specific criminal act. 175 S.W.3d at 749 &
n.44.
Here, the application paragraphs were not disjunctively submitted. Rather, each
expressly followed a count in the indictment and then flowed directly to a dedicated
verdict form. As noted, the charge required unanimity for a verdict. Each charged
offense, from indictment to verdict form, stood independently and, presuming the jury
followed the court’s instruction, each verdict was unanimous. Appellant has not shown
a unanimity problem. Finding the trial court did not commit charge error as appellant
asserts, we overrule his third issue.
Conclusion
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
James T. Campbell
Justice
Publish.
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