Steven Morgan v. State ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00080-CR
______________________________
STEVEN MORGAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 10F0084-005
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
I. Factual and Procedural Background
Steven Morgan appeals his conviction for aggravated sexual assault of a disabled person.
See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2011). T.H., the victim, testified that Morgan,
whom T.H. had previously known and regarded as a friend, called T.H. and arranged a meeting.
Morgan “took” T.H. to Morgan’s trailer, made T.H. undress, and then anally penetrated T.H.
T.H. testified Morgan threatened to shoot him if he told anyone. Anita Polomski, a sexual assault
nurse examiner, testified T.H. had an “acute one and a half centimeter tear and a one centimeter
open area tear” to the anus. The State also introduced evidence that Morgan’s DNA was
consistent with a DNA mixture found on the penile swab of T.H. with a match of “1 in 1,352 for
Caucasians.” A jury found Morgan guilty and assessed punishment at seventy-five years’
imprisonment. The trial court sentenced Morgan consistent with the jury’s assessment. On
appeal, Morgan argues the evidence is insufficient and reversible error occurred when the trial
court improperly commented on the weight of the evidence. We affirm the judgment of the trial
court.
II. The Evidence Is Sufficient
In his first two points of error, Morgan claims the evidence is legally and factually
insufficient1 to support the jury’s conclusion that T.H. is disabled.
1
With Judge Cochran joining the lead opinion, authoring a concurring opinion, and Judge Womack concurring with
the lead opinion and joining the concurrence, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (4-1-4
2
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light
most favorable to the jury’s verdict to determine whether any rational jury could have found the
essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing
Jackson, 443 U.S. at 319). Our rigorous legal sufficiency review focuses on the quality of the
evidence presented. Id. at 917–18 (Cochran, J., concurring).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A “hypothetically correct” jury charge is “one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id. The hypothetically correct jury charge must
include both (1) allegations that form an integral part of an essential element of the offense,
including allegations that are statutorily alternative manner and means and (2) material variances.
Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App.—Texarkana 2008, no pet.); see Gollihar v. State,
46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Under the hypothetically correct jury charge,
“disabled individual” would have been defined as:
decision), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and Judge Womack agreed
that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas
Court of Criminal Appeals has abolished factual sufficiency review, we will interpret Morgan’s factual sufficiency
challenge as a challenge to the legal sufficiency of the evidence.
3
“Disabled individual” means a person older than 14 years of age who by reason of
age or physical or mental disease, defect, or injury is substantially unable to protect
himself from harm or to provide food, shelter, or medical care for himself.
TEX. PENAL CODE ANN. § 22.04(c)(3) (West Supp. 2011); see TEX. PENAL CODE ANN.
§ 22.021(b)(2) (specifying “disabled individual” has meaning assigned by Section 22.04(c)).
Morgan argues the evidence is insufficient because the State failed to establish the extent
of T.H.’s “cognitive and physical abilities.” Morgan argues the fact that T.H. was able to ride his
bicycle2 downtown unaccompanied by any other person indicates he was not disabled. Morgan
also points out that T.H.’s mother did not remember T.H.’s IQ, did not specify whether T.H. was
exclusively in special education classes, did not indicate whether T.H. could handle money, and
did not discuss whether T.H. could provide for his nutritional needs, medical needs, or personal
hygiene. We note that T.H.’s mother testified T.H. had a “little job” at Dairy Queen prior to the
assault and “because of the incident, he quit that job.”
The evidence is sufficient for a rational juror to conclude beyond a reasonable doubt that
T.H. is substantially unable to protect himself from harm. Dr. Bryan Smith, a “clinical
psychologist and clinical neuropsychologist,” testified that he personally met with T.H. and “the
diagnosis, you know, based on the testing that I did, looking at school records, and looking at his
history, developmental history and, you know, functioning throughout his life, were all consistent
with a diagnosis of mental retardation.” T.H.’s mother testified T.H. suffered permanent brain
injuries during birth, is “mentally disabled,” and attended special education classes when he
2
When asked during cross-examination if “you ride your bicycle a lot,” T.H. answered, “Uh-huh. Yeah.”
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attended school. T.H.’s mother testified T.H., age twenty-nine, still lives with her. Tina Lee, an
investigator with the Bowie County Sheriff’s Office, testified that she recorded T.H.’s interview
because she did not believe that T.H. was mentally capable of giving a written statement.
Polomski testified there was “no trauma noted” in her “head to toe assessment.” The jury is
permitted to make reasonable inferences from the evidence. We must give deference to the
responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). A rational juror could infer, based
on the evidence presented, that T.H.’s mental disease prevents him from protecting himself from
harm. We conclude the evidence is sufficient for a rational juror to find T.H. was a “disabled
individual.”
III. Trial Court’s Comment/Instruction to Jury
In his third issue, Morgan argues the trial court improperly commented on the weight of the
evidence while instructing the jury. During the cross-examination of Dr. Smith, Morgan’s trial
counsel asked:
Q [By defense counsel] And in those discussions, were you able to --
or are you able to make a determination of whether [T.H.] is capable of
differentiating between the truth and a lie?
A [By Dr. Smith] Well, that wasn’t the exact reason why I was
evaluating him.
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Q But for someone in his, with his mental competence or with his
disability, would you be able to make that determination?
A That wasn’t something I was asked to determine at that time. I
mean, I could look back through and, you know, attempt to form an opinion on that,
but I hadn’t at that point.
Q Okay. So at this time you don’t have an opinion on that?
A Since that wasn’t the reason I was evaluating him, yeah. At this
point, I don’t.
The State did not object to this line of questioning. After another witness testified, the trial court
recessed.
After a brief recess, the trial court, apparently sua sponte, proposed an instruction be given
to the jury. When asked if anyone had any objections, Morgan’s trial counsel affirmatively
replied, “No, Your Honor.” The trial court orally instructed the jury as follows:
Members of the jury, during the examination of Dr. Smith the question was asked
whether the doctor had an opinion on the ability of the witness [T.H.] to distinguish
between telling the truth and telling a lie. It is for the judge, not the jury, to
determine whether a witness is competent to testify in a criminal proceeding. The
judge is not required to order a witness to undergo psychiatric evaluation for the
purpose of a competency evaluation. Rather, Texas law creates a presumption that
a person is competent to testify, and a witness will only be excluded when
questioning convinces the judge that the witness does not possess sufficient
intellect to accurately reflect transactions about which the witness is being
interrogated. Based on this standard, I have determined that the witness [T.H.] is
competent to testify pursuant to the rules governing this proceeding. Therefore, I
am instructing you to disregard the question of Dr. Smith regarding the ability of
[T.H.] to tell the difference between the truth and a lie and give it no weight in your
deliberations. It remains your responsibility to evaluate the credibility of all
witnesses, including [T.H.], and I am not permitted by words or actions to influence
your evaluation. I am only saying that he meets the threshold requirement of
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competence to testify. It will remain entirely up to you to determine whether to
believe all, none, or any part of his testimony.
A. Trial Court Ruling on Evidence
Morgan argues the above comment was in violation of Article 38.05 of the Texas Code of
Criminal Procedure, which directs:
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).
Morgan argues that “[t]he trial court instructed the jury to make no inference of credibility
of the complaint based on the psychologist’s failure to conduct a competency evaluation. In
short, the trial court instructed the jury that the complainant’s testimony should be believed.” We
do not agree with this analysis of the instruction.
The Texas Code of Criminal Procedure prohibits a trial court from making a statement
which comments on the weight of the evidence both in the jury charge, see TEX. CODE CRIM.
PROC. ANN. art. 36.14 (West 2007), and outside the context of the jury charge, see TEX. CODE
CRIM. PROC. ANN. art. 38.05, such as when ruling on the admissibility of evidence. A trial court
improperly comments on the weight of the evidence if it makes “a statement that implies approval
of the State’s argument, that indicates any disbelief in the defense’s position, or that diminishes the
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credibility of the defense’s approach to its case.” Hoang v. State, 997 S.W.2d 678, 681 (Tex.
App.—Texarkana 1999, no pet.) (footnotes omitted) (citations omitted).
No objection was made to this instruction. Generally, a claim that the trial court erred by
commenting on the weight of the evidence during trial or while ruling on evidentiary matters must
be preserved by objection before the appellate court may consider it. Woods v. State, 569 S.W.2d
901 (Tex. Crim. App. 1978); Minor v. State, 469 S.W.2d 579, 580 (Tex. Crim. App. 1971). A
very similar issue has been discussed by the Corpus Christi court. In Reyna, the jury was
instructed concerning the competency of a child witness.3 Since no objection was made, the
allegation was that the instruction was “plain error” and no objection was necessary. The Corpus
Christi court found the alleged error was not preserved. Reyna, 797 S.W.2d at 192–93.
We note that there is some authority, albeit not binding authority, that a judicial comment
can result in fundamental error, therefore not requiring an objection to preserve review, if the
comment imparts information to the jury that taints the defendant’s presumption of innocence. In
Blue v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000), a plurality of the Texas Court of
3
That instruction was:
Now, ladies and gentlemen of the jury, you’re in just as good of a position as I am. Although the
law does require that before a witness testifies the witness must be competent. Now, this little
witness—obviously, all of you are well aware that children are different. And the Court is going to
rule that she will be allowed to testify because of the questions that I have asked. I don’t want to
accept totally that she is totally competent, obviously, she is very young. You’re going to have to
be the Judge and I’m going to allow her to testify but it is your responsibility and also your
responsibility to determine the weight that you give to her testimony, okay?
Reyna v. State, 797 S.W.2d 189, 192–93 (Tex. App.—Corpus Christi 1990, no writ).
8
Criminal Appeals held that the judge’s comments tainted the presumption of innocence and was
fundamental error of constitutional dimension.4 Judge Keasler concurred in the result, reasoning
that the judge’s comments were “so egregious” that they violated the right to an impartial judge
and resulted in structural error. Id. at 139 (Keasler, J., concurring). As a plurality decision, Blue
is not binding precedent. Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999).
Since its decision in Blue, the Texas Court of Criminal Appeals has declined to either endorse or
reject Blue’s discussion of fundamental error. See Brumit v. State, 206 S.W.3d 639 (Tex. Crim.
App. 2006); Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding comment did
not rise to such a level as to bear on presumption of innocence or vitiate impartiality of jury and
recognizing Blue was plurality decision); Chanthakoummane v. State, No. AP-75,794, 2010 Tex.
Crim. App. Unpub. LEXIS 249 (Tex. Crim. App. Apr. 28, 2010) (mem. op., not designated for
publication). The judge’s comment in this case does not taint the defendant’s presumption of
innocence or demonstrate impartiality.
The comment was neutral, was a substantially correct statement of the law, and explained
that while competency to testify was an issue for the court, it also emphasized to the jury that
credibility decisions were the province of the jury. The comment did not prevent a fair and
impartial trial. Therefore, the error, if any, is not fundamental error and any complaint that the
4
The plurality opinion was written by Judge Johnson and joined by Judges Mansfield, Price, and Holland. Blue, 41
S.W.3d at 133. Judge Mansfield also wrote a concurring opinion. Id. at 133 (Mansfield, J., concurring). Judges
Keller, McCormick, and Womack dissented, asserting that an objection was required in order to preserve error. Id. at
144 (Keller, J., dissenting).
9
trial court erred during its ruling on an evidentiary matter has been forfeited by failing to object at
trial. See TEX. R. APP. P. 33.1; Jasper, 61 S.W.3d at 421; Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993).
B. Jury Charge Error
Morgan argues this instruction should also be treated as a jury charge error and be
evaluated under the Almanza test.5 While it is not clear whether the instruction was delivered to
the jury with the usual jury charge, it was in writing, signed by the trial judge, filed in the clerk’s
office, and file-stamped at the same time as the guilt/innocence jury charge; therefore, we will also
address it under the Almanza standard. The first issue is whether the comment is jury charge
error.
This instruction addressed the issue of the role of the trial court in ruling on the competency
of witnesses to testify. It instructed the jury to disregard a question to a psychologist on this issue.
Ultimately, the instruction made it clear that the jury had the exclusive right to evaluate the
credibility of the witnesses, not the judge. The comment did not emphasize any particular
statement or evidence presented by the witness; the witness had no opinion or answer to the
question and the jury was instructed to disregard the question, not an answer of the witness.
While this instruction may not have been necessary, we do not find that it was calculated to benefit
the State or to prejudice the rights of the defendant. See Becknell v. State, 720 S.W.2d 526, 531
5
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
10
(Tex. Crim. App. [Panel Op.] 1986); Madrigal v. State, 347 S.W.3d 809, 814 (Tex. App.—Corpus
Christi 2011, pet. ref’d) (mem. op.).
Even if the comment/instruction was an erroneous jury charge instruction, since there was
no objection, it is not reversible error unless it resulted in egregious harm. Almanza, 686 S.W.2d
at 171. Egregious harm is shown if the very basis of the case is affected which deprives the
defendant of a valuable right, vitally affects a defensive theory or makes the case for conviction or
punishment significantly more persuasive. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.
App. 2007). In making such determination, we examine the entire jury charge, the evidence,
including contested issues and the weight of the probative evidence, the arguments of counsel, and
any other relevant information. Id. Here, the evidence of guilt was significant, the victim
identified Morgan, DNA tests made some connection, and physical evidence of the assault was
presented. Nothing in the record indicates that the instruction deprived Morgan of any valuable
right, affected a defensive theory, or made the case for conviction more persuasive. We find the
instruction did not cause egregious harm.
For the reasons stated, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: April 2, 2012
Date Decided: April 12, 2012
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Publish
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