Norman Earl Horton, Jr. v. State of Texas ( 2012 )

Opinion filed February 16, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-00043-CR
__________
NORMAN EARL HORTON, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR17205
MEMORANDUM OPINION
Norman Earl Horton, Jr., was indicted in three separate counts for aggravated sexual
assault of a child by penetration of her sexual organ. The victim, T.C., was the stepdaughter of
appellant. She was younger than fourteen years of age on all three occasions. For the
aggravated sexual assault alleged in Count I of the indictment, the jury found appellant guilty
and assessed punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for sixty years and a fine of $10,000. For the aggravated sexual assault alleged
in Count III, the jury found appellant guilty and assessed punishment at confinement for life and
a fine of $10,000. For Count II, the jury found appellant guilty of the lesser included offense of
indecency with a child and assessed punishment at confinement for twenty years and a fine of
$10,000. The trial court ordered that the ―Count II sentence of 20 years TDCJ-ID runs
concurrent‖ and the ―Count III sentence of Life runs consecutive to Count I sentence of 60 years
TDCJ-ID.‖
Appellant presents five issues on appeal: the trial court erred in admitting evidence of an
extraneous ―bad act‖; the evidence was factually insufficient to support the convictions for the
aggravated sexual assaults; the evidence was factually insufficient to support the conviction for
indecency with a child; the trial court abused its discretion in cumulating the sentence for the
indecency conviction with the sentences for the two aggravated sexual assault convictions; and
the trial court’s sentencing violated the prohibitions in the United States Constitution and the
Texas Constitution against a state applying an ex post facto law. We modify the judgment of the
trial court to make it clear that the twenty-year sentence runs concurrent with the Count I
sentence of sixty years. Otherwise, we affirm.
Background Facts
At the time of trial, T.C. was twenty years old and living in Louisiana. Appellant entered
T.C.’s life when she was four or five. Her parents were in the middle of a bitter divorce. T.C.,
her mother, and her brother were living in a trailer behind a Mexican restaurant near Lake
Brownwood. Her mother and appellant began a relationship, and appellant moved in with them.
They subsequently married.
T.C. testified that she was about eight and one-half years old and in the fourth grade
when appellant first sexually assaulted her. T.C. stated that the first sexual assault by appellant
occurred when she had stayed home sick. Appellant was wearing a robe and asked her to sit
beside him on the couch. He asked her to feel his penis, and she did. Appellant then took her to
his bedroom and had her undress. T.C. testified, ―[H]e put himself into me for a few minutes. I
don’t know how long.‖ She told him that it hurt, and he stopped. He then told her, ―Don’t tell
Mom.‖ T.C. stated that she did not tell her mother because she did not think that her mother
would believe her and because she was afraid of appellant.
During a sleepover when T.C. was in the fifth grade, she told one of her close friends
about the sexual encounter with appellant. T.C. and that friend were subsequently with another
close friend, having a deep discussion late at night, when T.C. also told that friend. T.C. insisted
to both girls that they must not tell anyone because she did not want to tear her family apart.
Neither girl ever told anyone, but both testified at trial about those discussions. At trial, the two
friends were in their twenties, and one was married.
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T.C. testified that appellant emotionally and mentally abused her and her brother. She
described appellant as a ―true Marine‖ who would harshly discipline them. For example, she
remembered appellant requiring her brother to hold a rifle out in ―dead zombie time‖ and
requiring them to clean the bathroom with a toothbrush. T.C. also stated that they moved around
Brownwood a lot when she was young; however, she remembered where they were living when
the assaults occurred.
When T.C. was thirteen years old and in the seventh grade, the second sexual assault
occurred. They were living in a rented house on Avenue E in Brownwood at the time. T.C.
testified that she was staying home because she was sick. She remembered that it was in
February or March because the weather was cold. T.C. said she was asleep when she heard
something at the door. Appellant came in, lifted up her shirt, and started kissing her breasts. He
then asked her to go into his bedroom, get undressed, and get on the bed. She did, and she
remembered that he was wearing boxer shorts, which he took off. Appellant ―put himself into
[her] like the time before.‖ When he finished, he told her to take a shower and clean herself
―real good.‖ While she was in the shower, appellant asked her if she was taking birth control
pills. T.C. told him that she was. She explained to the jury that she was taking the pills because
she was having problems with her menstrual cycle at the time and her doctor had prescribed
them. During her testimony, she confirmed that her sexual organ had been penetrated by
appellant’s penis during both assaults.
The last incident occurred the following summer when she was still thirteen years old.
She had just had her hair highlighted for the first time. Appellant had told her not to have her
hair colored. When she came home, she showed him her hair. She stated, ―And the next thing I
remember, I was standing in his bedroom and he told me to feel [his penis]. And [she] did.‖
However, he did not penetrate her that time. It was the last sexual contact she had with
appellant.
T.C. testified that she did not tell anyone after the last two occasions. She remembered
that it was in December in her ninth grade year when she learned that her uncle and his wife
were going to move to San Diego. She planned to ask them to take her because she did not want
to continue living with appellant and her mother. She told a few friends that she was going to
ask her uncle, and they asked her why she wanted to leave. One of her friends asked her in class,
and T.C. wrote a note telling her about the actions of appellant. Although T.C. asked the friends
to not tell anyone, they took the note to Reca Godfrey, the school counselor, who called T.C. to
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her office. T.C. told Godfrey what had happened on the three occasions, and Godfrey called
T.C.’s mother. After her mother came to the school and visited with T.C. and Godfrey, her
mother took T.C. home where they called a local police officer they knew, Troy Carroll, who
came to their home to begin the police investigation. Officer Carroll turned the investigation
over to Detective Richard Williams of the Brownwood Police Department. T.C. and her mother
also contacted Child Protective Services.
Detective Williams’s testimony essentially reiterated T.C.’s trial testimony. He had
asked T.C. if there had been any moisture or blood after the assaults. He first testified that he
remembered T.C. stating that she had not noticed any moisture or blood. However, after
reviewing his notes during the trial, Detective Williams subsequently corrected his testimony and
said that he had written ―there was a little blood‖ in the margin of his report; he had not noted to
which sexual assault his note related. Detective Williams also testified that he had asked T.C.’s
mother if she had noted any changes in T.C. about the time of the first sexual assault. She
responded that she had noticed changes in T.C. Detective Williams discussed his interview with
Dana O’Connor of Child Protective Services and T.C.’s written report to O’Connor that
described the assaults.
A few weeks after meeting with Detective Williams, T.C. and her mother went to
San Angelo where T.C. underwent a sexual assault exam. The sexual assault nurse, Angela
Wilke, testified that her examination of T.C. revealed a well-healed ―notch‖ on T.C.’s hymen.
The nurse testified that the trauma to T.C.’s hymen that she found was unusual because T.C.’s
hymen had been permanently separated by a penetration that left a permanent cleft in T.C.’s
hymen after it healed. Wilke stated that trauma to the hymen was unusual even in assault cases.
She further testified that the level of injury was consistent with an adult male sexual organ
penetrating the female sexual organ of a child.
Witnesses for the State included T.C., T.C.’s mother, Godfrey, Officer Carroll,
Detective Williams, Wilke, and T.C.’s two close friends from the fifth grade who have remained
close friends even though they and T.C. live in different states.
In defense, appellant testified and called nine witnesses. Appellant had delayed the
cross-examination of T.C. until he put on his defense and called T.C. as a witness. T.C. admitted
that the family was in turmoil when her mother divorced her natural father and appellant first
moved in with T.C.’s mother, T.C., and T.C.’s brother. She admitted that those were difficult
times because her natural father and appellant did not get along. She admitted that her natural
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father wanted custody of her and her brother, but she testified that he did not ask her to say
anything that might help him in the custody fight.
Carolyn Peoples, appellant’s mother, testified that appellant had never had an unusual
sexual interest in children, that she had never known appellant to be cruel toward children, and
that T.C. had not appeared to her to be afraid of appellant. She admitted that appellant had been
raised by his father to be a strict disciplinarian. She also admitted that she was not around T.C.
or the family very often. She saw them about once a year.
Shane Horton, appellant’s brother, testified that he did not know T.C. very well and had
not spent much time with T.C. He also said that he had never known appellant to have an
unnatural sexual interest in children and that appellant always told the truth. He acknowledged
that his brother believed in discipline. He had seen appellant make T.C. and her brother clean
the bathroom with a toothbrush. Shane admitted that he was not around when any of the alleged
assaults happened. He did testify that he saw T.C. exhibit friendly behavior with appellant at a
carnival when appellant gave T.C. and her half sister money for rides. Shane thought that that
was unusual in light of T.C.’s accusations.1
The remainder of the defense witnesses either had not known appellant until after T.C.’s
outcry to Godfrey and the ensuing investigation or were not around appellant very often when he
was married to T.C.’s mother. Jenny Strickland, a friend in Brownwood, and Arthur Rodriguez,
a pastor in Crane, Texas, testified that they did not believe appellant had an unnatural sexual
interest in children, that he was not cruel to children, and that his reputation for telling the truth
was good. But they did not meet appellant until after T.C.’s allegations became public.
By the time of trial, appellant had remarried and lived in Crane. His wife, Suzanne
Horton, and her two daughters testified on behalf of appellant. They said that appellant treated
them well and that they were never uncomfortable around him. They also testified that they had
not observed appellant to have an unnatural sexual interest in children and that he had a good
relationship with his other daughter who was T.C.’s half sister, a child of appellant and T.C.’s
mother.
James Cleveland, a longtime friend of appellant, testified that appellant did not have an
unnatural interest in children and that appellant had never lied to him. He admitted that he had
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T.C.’s mother had provided an explanation during the State’s case. She testified that T.C. was in counseling at the
Child Protective Center for a year. T.C. had avoided seeing appellant when he came to pick up her half sister, but finally she told
her mother that she had to face appellant stating, ―Mom, I’m going to have to face my demons one day, and it might as well be
today.‖ After that, T.C. did not hide from appellant.
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only seen appellant three or four times a year during the ten years that appellant was married to
T.C.’s mother. Cleveland thought that T.C.’s mother was appellant’s first wife; she was
appellant’s second wife.
Appellant testified that none of the alleged sexual assaults had occurred. He admitted
that he and T.C. did not agree on a lot of subjects. According to him, T.C. would wear ―the
skimpiest shorts [he] had ever seen.‖ He claimed he was never alone with T.C. because he was
always on the road as a truck driver. He testified that, every time T.C. became sick, she would
stay with her grandmother. He also testified that, while on one road trip, he had called T.C.’s
mother and that he had called for four hours before finally talking with her. According to
appellant, her explanation was that she had gone to the store. He was certain that she was
cheating on him. He strongly claimed that he was always faithful to T.C.’s mother and never
wanted to cheat on her. He expressly denied ever being in a game room in Comanche and said
he did not know a woman named Cathy Hale.
In rebuttal, the State put into question appellant’s claim and that of his witnesses that he
was always truthful. The State pointed out that appellant had proposed to Suzanne in February
2006. Suzanne testified that he told her that he was divorced; that was not true. He was
divorced in June 2006. T.C.’s grandmother, who worked for the Early school district for thirty-
five years, testified that appellant was the one alone with the children when they were sick. She
also testified that T.C. and her brother, when visiting, would ask to stay because they did not
want to go home to stay with appellant. She further testified that, at times, appellant did not have
a job and that he would be home with T.C. or her brother. She asserted that T.C. was very
truthful and that this entire experience had been very hard for T.C. According to the
grandmother, T.C. at first was comfortable around appellant, but when she was around nine, she
began to express a desire to not be around appellant.
The jury no doubt remembered T.C.’s mother’s testimony during the State’s case. She
testified that she had seen appellant emotionally and mentally abuse T.C. and enforce unusual
punishments. Her parents had seen the abuse. She admitted that neither she nor her parents had
done anything about the emotional and mental abuse. She also testified that, when T.C. was sick
and appellant was not working, he would stay with T.C.
The State next called Cathy Hale as a witness to refute appellant’s claims of truthfulness
and fidelity. Hale worked at the courthouse and recognized appellant during the trial. She
testified that, in 1998 and 1999, she was going through a divorce, was vulnerable, and spent time
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playing games in the game room in Comanche. According to her, appellant would stand by her
machine and flirt and finally began propositioning her. She turned him down, but later saw him
and his brother while working at Mid-Tex Cellular. By that time, Hale had remarried.
After closing arguments, the jury deliberated for slightly over four hours and then
returned its verdict.
Sufficiency of the Evidence
In appellant’s second and third issues, he argues that the evidence was factually
insufficient to support his convictions for the two aggravated sexual assaults and for the offense
of indecency with a child. Appellant’s brief was written before the Court of Criminal Appeals
issued its opinion in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). It is now
clear that we review a sufficiency of the evidence issue, regardless of whether it is denominated
as a legal or a factual sufficiency claim, under the standard set forth in Jackson v. Virginia, 443
U.S. 307 (1979). Brooks, 323 S.W.3d at 912; Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the evidence in
the light most favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010).
Under the Jackson standard, all evidence, including circumstantial evidence, is
considered. Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001, pet. ref’d).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,
and circumstantial evidence can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007).
T.C.’s testimony describing the three sexual assaults was supported by her outcry
statements to Godfrey, the testimony of the SANE nurse who confirmed the outcry statements
and explained the results of the sexual assault examination (the damage to T.C.’s hymen), T.C.’s
written report to Child Protective Services (as related by Detective Williams), the testimony of
her mother, and the testimony of her two friends that she told in the fifth grade about the first
sexual assault when T.C. was eight and one-half years old.
Godfrey was T.C.’s counselor from the time T.C. was in the third grade until she
graduated from high school. Godfrey testified that she had a master’s degree in counseling and
was a licensed professional counselor. When Godfrey called T.C. into her office about the note,
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she asked T.C. if her statements in the note were true. T.C. told her that they were. T.C. testified
that she began crying and shaking because she had finally told an adult. She had not wanted any
adult to know because she did not want her mother to go through another divorce. Godfrey
described T.C.’s initial outcry:
I said, ―[T.C.], I understand you have something you need to tell me.‖ And when
I told her – I mean, when I said that to her, she immediately just broke down,
started crying, and told me that, yes, that she had been raped by her step-dad.
And she began to tell me some of the details about how many times it
happened and she told me that [the] reason he said that he wanted to do this to her
was because she would be having sex some day and he wanted her to know what
it felt like, he wanted to be the one to teach her how to do that.
I talked to her about running away, why was she going to run away, what
she needed to do. She said, ―He told me that he was going to come back when I
was 16 and do it again‖ and she was real scared for that reason.
Godfrey described T.C. as crying uncontrollably and shaking. T.C. was holding her head
down, but Godfrey finally got T.C. to look at her and describe what had happened, which was
that she had been penetrated twice. T.C. told Godfrey that she had told two close friends in
middle school about the first time appellant had assaulted her. T.C. did not want to tell her
mother, but agreed that she had to. T.C. was afraid about what would happen to her family,
especially her mother and grandmother. T.C. thought that they might think less of her. Godfrey
then called T.C.’s mother to come to the school.
The State introduced T.C.’s attendance records through Godfrey. For the year when T.C.
turned thirteen, the records reflected that she was absent on February 5. The records also
reflected that T.C. was absent only four times that school year. Godfrey agreed that any day T.C.
missed would be memorable to T.C. because she missed so few days. For the following year,
T.C. was absent only three days.
T.C.’s mother testified that, after T.C. and Godfrey told her about the assaults, she took
T.C. out of school and contacted an officer they knew, Officer Carroll, with the Brownwood
Police Department. She testified that she and T.C. packed everything up and moved out the next
day. Two days after T.C. graduated from high school, she and the children (T.C., T.C.’s brother,
and their half sister) moved to Louisiana. Although not detailed here, her testimony also added
credence to T.C.’s testimony.
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M.B.H. and A.M. were the friends in the fifth grade that T.C. told about appellant’s
sexual assault when she was in the fourth grade. They related T.C.’s description of the
encounter. Both would tell T.C. that they needed to tell someone, but T.C. adamantly refused to
allow anyone else to know. A.M. said that T.C. was concerned that it might tear the family
apart.
After examining all of the evidence in the light most favorable to the verdicts, we find
that a rational trier of fact could have found the essential elements of the three offenses beyond a
reasonable doubt. Appellants second and third issues are overruled.
Appellant’s First Issue
In appellant’s first issue, he argues that the trial court erred in admitting evidence of the
―bad act‖ of appellant propositioning Hale while he was married to T.C.’s mother. Appellant
reasons that the act was irrelevant for any purpose except to show his propensity to commit other
bad acts. We disagree. The evidence was admitted solely for impeachment and to rebut
appellant’s evidence that he always told the truth.
Appellant’s witnesses had emphasized in their testimony that appellant always told the
truth. Appellant’s defense was that T.C. had made everything up and she was lying. During
appellant’s direct testimony, he was asked if there was an event that was making T.C. unhappy
enough to want to go to San Diego. Appellant testified that he and T.C.’s mother argued because
she was cheating on him. He related one specific instance where he had called T.C.’s mother for
four hours while he and his lead driver were on a job. When he finally spoke to her, she said that
she had been at the store. He then testified as follows:
A. . . . Well, that went on several times. And that is what made me think
that she was cheating on me. And come to find out later, she was.
Q. All right. And were you being unfaithful to her, too?
A. No, sir, I didn’t even have a chance to.
Q. All right.
A. Or even wanted to.
Appellant stated that he and T.C.’s mother would argue about her infidelity and that T.C. was
accurate when she said she would lie awake at night and listen to them arguing. Appellant also
stated that, when he arrived home on December 3 or 4, he found that everyone had moved.
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Several times during cross-examination, appellant again strongly denied that he had ever
cheated on T.C.’s mother and that he had not even wanted to cheat. Appellant emphasized that
he did not have time to ever cheat on his wife because of his heavy work schedule. He claimed
that he had not gone to bars and other places to ―hit on women‖ while married to T.C.’s mother.
He testified that he did not know a woman named Cathy Hale.
Hale worked at the Brownwood courthouse and recognized appellant during the trial.
Appellant objected to the State calling Hale as a witness because she had not been on the State’s
witness list and because the State had not given any notice of bad acts. In response, the State
argued that Hale was only called as a rebuttal witness because appellant had called eight
witnesses to talk about the truthfulness of appellant and because appellant’s counsel had elicited
appellant’s testimony that T.C.’s mother was cheating on him and he had never even wanted to
cheat. Appellant had put on a substantial amount of character evidence, and the State wanted to
rebut that image.
The trial court held a hearing outside the presence of the jury where the State made a
proffer of Hale’s testimony. The State pointed out that appellant’s theory in defense was that the
mother was cheating on him and T.C. had created the entire story to somehow help her mother.
Appellant’s counsel argued that the marriage was falling apart in December 2003 and that that
was ―some 17 to 22 months after the last possible event had occurred. And [the failing marriage
had] to do with the state of mind of this child when the outcry was made.‖ Counsel then argued
that any interaction between appellant and Hale was too remote in time and confused the issue.
The State, in response, stated again that the testimony would simply be impeachment and that
appellant had put his character in issue. The State further stated that it had just learned of this
potential witness the previous day.
If a trial court determines that evidence of extraneous crimes or bad acts has relevance
aside from character conformity and if a proper Rule 403 objection is made, the trial court must
make a balancing determination under Rule 403. TEX. R. EVID. 403; Montgomery v. State, 810
S.W.2d 372, 388–89 (Tex. Crim. App. 1991). The trial court below expressly found that the
probative value of the proposed testimony outweighed its prejudicial nature and that it would not
confuse the issues. See Rule 403. The court instructed the State to limit its questions for
impeachment purposes. After ruling that the witness would be allowed to testify ―in a limited
nature,‖ the trial court asked appellant if he wanted any limiting instructions to make it clear that
the testimony was for impeachment purposes only. Appellant declined the court’s offer.
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We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Burden v.
State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial
court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Zuliani v.
State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Burden, 55 S.W.3d at 615. We find that the
trial court’s ruling in this case did not fall outside the zone of reasonable disagreement.
Rule 404(a) provides that evidence of a person’s character or character trait, although generally
not admissible, may be admitted if it is offered by the accused or by the prosecution to rebut the
evidence offered by an accused. TEX. R. EVID. 404(a).
From the record, it appears that the defense strategy was to convey an image to the jury
that appellant was hardworking and truthful, that his wife was unfaithful but he was not, and that
T.C. had made up the outcry to help her mother. The State was entitled to call Hale as a witness
in rebuttal. Appellant’s first issue is overruled.
Appellant’s Fourth and Fifth Issues
In appellant’s fourth issue, he contends that the trial court abused its discretion in
cumulating appellant’s sentence for the indecency-with-a-child conviction with his sentences for
the two aggravated sexual assault convictions. In his fifth issue, he argues that his sentencing
violated the United States and Texas Constitutions prohibitions against a state applying an ex
post facto law.
Appellant was convicted of three offenses: (1) Count I: an aggravated sexual assault on or
about January 1, 2003; (2) Count II: indecency with a child by sexual contact on or about
July 20, 1997; and (3) Count III: an aggravated sexual assault on or about July 20, 1998.
Appellant’s argument is based on TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2011),
which limits a trial court’s discretion to cumulate sentences where a defendant has been found
guilty of more than one offense arising out of the same criminal episode in a single trial. A
criminal episode is defined as including the repeated commission of the same or similar offenses.
Section 3.01 (West 2011). Appellant notes that the legislature in May 1997 amended
Section 3.03(a) to add certain sexual offenses committed against a victim younger than seventeen
to the list of those offenses subject to consecutive sentencing. See Section 3.03(b)(2)(A) (West
Supp. 2011). The amendment permitted sentences for indecency with a child and aggravated
sexual assault obtained in a single trial to be consecutive if committed on or after September 1,
1997.
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In this case, the act of indecency with a child occurred prior to the effective date of the
1997 amendment to Section 3.03. The two aggravated sexual assault convictions were
committed after the effective date. Appellant contends that the trial court’s judgment
erroneously orders the indecency-with-a-child sentence to run concurrent with both sentences for
aggravated sexual assault despite the court having ordered the life sentence (Count III) to run
consecutive to the sixty-year sentence (Count I).
Appellant’s argument in his fifth issue is that the trial court’s judgment amounted to an
ex post facto law because the effect of the order is to have appellant’s second sentence run twice,
i.e., concurrent with the sentence in Count I and concurrent with the sentence in Count III that
begins after the completion of the sentence in Count I.
The trial court’s judgment provided the following special orders:
Count II sentence of 20 years TDCJ-ID runs concurrent.
Count III sentence of Life runs consecutive to Count I sentence of 60 years TDCJ-
ID.
In response to both issues, we modify the trial court’s judgment to make it clear that the
twenty-year sentence runs concurrent with the Count I sentence of sixty years.
This Court’s Ruling
The judgment of the trial court is modified to read ―Count II sentence of 20 years TDCJ-
ID runs concurrent with the Count I sentence of 60 years TDCJ-ID.‖ Otherwise, the judgment of
the trial court is affirmed.
TERRY McCALL
JUSTICE
February 16, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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