Jimmy Acosta Brite v. State ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-07-00820-CR
Jim BRITE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR5362
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: June 10, 2009
AFFIRMED
Jim Brite was convicted by a jury of aggravated sexual assault of a child, sexual assault of
a child, and three counts of indecency with a child. Brite presents nine issues on appeal contending:
(1) the evidence is legally and factually insufficient to support the convictions; (2) the trial court
abused its discretion in failing to determine whether one of the complainants understood the oath to
tell the truth; (3) the trial court abused its discretion in allowing an officer to testify as an expert in
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interpreting “gesture clusters;” (4) the trial court abused its discretion in admitting evidence of
offenses barred by limitations; (5) the trial court abused its discretion in preventing the defense from
presenting evidence of alternative explanations for one of the complainant’s behavior; (6) the State
engaged in improper bolstering of its witnesses; (7) Brite’s double jeopardy rights were violated; (8)
the charge did not require the jury to reach a unanimous verdict; and (9) the trial court erred in
overruling Brite’s objection to the State’s improper parole law references during closing argument
of the punishment phase of trial. We affirm the trial court’s judgment.
SUFFICIENCY
In determining the legal sufficiency of the evidence, we review all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting a factual
sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict
only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the
verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000). “[D]ue deference must be accorded the fact finder’s determinations,
particularly those determinations concerning the weight and credibility of the evidence,” and a
reviewing court’s disagreement “with the fact finder’s determination is appropriate only when the
record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Id.
at 9.
At the time of trial, Nancy M., the mother of S.M., who was one of the complainants, was
separated from her husband Rick M., who was S.M.’s father. Brite was the boyfriend of S.M.’s
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paternal grandmother. Nancy M. initially liked Brite, and he attended numerous family outings. In
October or November of 2005, Nancy M. and Rick M. were having marital problems, and Rick M.
moved to his mother’s house. S.M. and her siblings would visit Rick M. at their grandmother’s
house, and they stayed the night approximately five times. In December of 2005, S.M.’s younger
sister, C.M., who was three or four years old, told Nancy M. something that made her concerned.
Nancy M. asked S.M., who was approximately seven years old, about the information, and S.M. told
her that “she was sleeping and that she woke up and [Brite] touched her middle.” Nancy M. set up
an appointment for S.M. to see a counselor, Mary Ann Harris, on December 28, 2005. After Harris
spoke with S.M., she instructed Nancy M. that she needed to call child protective services and make
a police report. Harris referred Nancy M. to Child Safe where S.M. was interviewed on videotape
and medically evaluated. S.M. started counseling with Marianne Torres and continued in counseling
for a little over a year. Nancy M. did not immediately call the police, but eventually both Nancy M.
and S.M. gave statements to Detective Lisa Miller. Nancy M. testified that the incident made S.M.
scared and angry and caused her to have trouble sleeping. Nancy M. admitted that her separation
from Rick M. also could cause S.M. to be angry and have trouble sleeping. Nancy M. further stated
that S.M. would express anger towards Rick M. because he would yell at S.M. and sometimes curse
her with profanity.
S.M., who was nine years old at the time of trial, testified that in October or November of
2005, she was sleeping on the couch at her grandmother’s house, and Brite “put his hand in [her]
pants” and touched her private part, which she stated was her vagina, underneath her panties. S.M.
stated Brite’s hand was touching the skin of her private part. Although S.M. told Brite to stop, he
continued touching her. S.M. said when Brite touched her, his hand would stay still. S.M. did not
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tell anyone because she thought her mom would get mad at her. S.M. said Brite touched her about
four times. S.M. recalled one time when Brite was eating hot wings, and “he touched [her] there and
it started to burn.” Brite told her to get a washcloth and put it on her “middle” so it would stop
burning. S.M. said she told her little sister because she was afraid to tell her mom. S.M. testified
that no one told her to say bad things about Brite or told her to make up stories about him because
they were mad at him. In response to whether Brite’s “fingers were on the outside of her private part
or something else,” S.M. responded that she did not remember.
Detective Lisa Miller took Nancy M.’s statement and sent S.M. to Child Safe for a medical
evaluation and interview. On March 6, 2006, Detective Miller interviewed S.M. and later
interviewed Brite on March 26, 2006. Detective Miller testified that Brite did not respond directly
to her questions but qualified his answers. For example, Brite would respond that he “cannot see
myself doing that” or “I don’t remember doing that.” During the interview, Brite did corroborate
that the family ate hot wings on the night of one of the alleged incidents; however, Brite told
Detective Miller that S.M. got the sauce on her hands when she cleaned up the kitchen and later
complained that she was burning after she went to the restroom. Brite further stated that he
examined S.M., determined that she must not have washed her hands before using the restroom, and
instructed her to go wash her hands and clean herself with a wash rag. Brite explained that he
examined her to see if something had bitten her.
After Detective Miller turned S.M.’s case over to the district attorney’s office for their
review, she was contacted by Brite’s daughter, A.B., who subsequently came to the station for an
interview regarding sexual offenses Brite committed against her. Based on that interview, Detective
Miller referred A.B.’s case to the district attorney for aggravated sexual assault of a child.
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Nancy Kellogg, a pediatrician who specializes in treating child sexual abuse victims, testified
that S.M. told her she was asleep on the couch when Brite put his hand inside and it felt
uncomfortable. S.M. was anxious and difficult to interview because she did not want to elaborate
on details. Dr. Kellogg further stated that S.M. indicated through her gestures that Brite’s hand was
inside of her private. Dr. Kellogg testified that S.M.’s description of the burning also indicated to
her that Brite had penetrated S.M. with his finger. Dr. Kellogg testified that S.M.’s physical exam
was normal which is most common when examining children in this context.
A.B. testified that when she was six years old, Brite, her father, placed his penis between her
legs. Although Brite tried to place his penis inside her vagina, she told him it hurt, and he stopped.
He continued, however, rubbing his penis in between her legs. A.B. testified that Brite would do this
to her at least three or four times a week. Brite also touched A.B.’s vagina with his fingers a lot and
placed his mouth on her vagina at one point. These incidents continued after September 1, 1987,
until her parents divorced when she was around fourteen years old. When A.B. was in third grade,
she was called to the counselor’s office and told the counselor about Brite’s actions. Child protective
services and the police were called. A.B. stated that the family went to counseling for about a year
after she told the counselor. After the counseling, Brite started fondling A.B. again, and Brite
continued placing his sexual organ between A.B.’s legs and touching her sexual organ with his
sexual organ. After her parents’ divorce, Brite attempted to touch A.B. when she was seventeen;
however, she stopped him. A.B. was afraid to call the police because nothing happened the other
time they were called. When asked why she finally decided to pursue charges against her father,
A.B. stated Nancy M. told her about the incident involving S.M. A.B. further stated, “I just don’t
want him to do this to anybody anymore.”
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A. S.M.
1. Aggravated Sexual Assault (Count II)
In count II of the indictment, Brite was charged with intentionally or knowingly causing the
penetration of S.M.’s female sexual organ with his finger. Thus, count II charged Brite with
aggravated sexual assault. See TEX . PEN . CODE ANN . art. 22.021(a)(1)(B)(i) (Vernon Supp. 2008).
Brite contends the evidence is insufficient to establish “penetration.” S.M. testified that
Brite was eating hot wings, and “he touched [her] there and it started to burn.” S.M. told Dr. Kellogg
that Brite put his hand “inside” and it felt uncomfortable. Dr. Kellogg further stated that S.M.
indicated through her gestures that Brite’s hand was inside of her private. Dr. Kellogg testified that
S.M.’s description of the burning also indicated to her that Brite had penetrated S.M. with his finger.
It was within the jury’s province to weigh S.M.’s reluctance or nervousness in relaying specific
details of the event. We conclude that the foregoing evidence supports the jury’s finding that Brite
penetrated S.M.’s female sexual organ with his finger.
2. Indecency with a Child (Counts I and III)
In counts I and III of the indictment, Brite was charged with intentionally or knowingly
engaging in sexual contact with S.M. by touching part of S.M.’s genitals with the intent to arouse
or gratify the sexual desire of any person. Count I alleged the incident occurred on or about the 31st
day of October, 2005, while Count III alleged the incident occurred on or about the 30th day of
November, 2005. Both counts charged Brite with indecency with a child. See TEX . PEN . CODE
ANN . art. 21.11(a)(1) (Vernon 2003).
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S.M. testified that in October or November of 2005, she was sleeping on the couch at her
grandmother’s house, and Brite “put his hand in [her] pants” and touched her private part, which she
stated was her vagina, underneath her panties. S.M. stated Brite’s hand was touching the skin of her
private part. S.M. further testified Brite touched her about four different times.
Brite initially contends that one of the counts was a lesser included offense of the aggravated
sexual assault count. The evidence, however, established that Brite touched S.M. four different
times in October or November of 2005. Accordingly, the evidence is sufficient to support both
indecency with a child counts in addition to the aggravated sexual assault count.
Brite also contends the evidence fails to establish that he intended to arouse or gratify his
sexual desire. Intent can be inferred from the acts, words, and conduct of the accused. Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In this case, Brite waited until he was alone
with S.M. before touching her. Moreover, Brite refused to quit touching S.M. when she asked him
to stop. Finally, the evidence that Brite committed the same conduct on four occasions is additional
evidence of intent. See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d).
Accordingly, the jury could have inferred from the evidence presented that Brite intended to arouse
or gratify his sexual desire.
B. A.B.
With regard to the two offenses Brite was charged with committing against A.B., the
indictment charged Brite with committing the offenses on or about September 26, 1993. Brite
contends that because A.B. testified that Brite’s repeated offensive contact ceased when he moved
out of the family home on August 12, 1992, the evidence was insufficient to prove the offense
occurred on or about the date alleged in the indictment. The indictment’s “on or about” language,
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however, allows the State to prove a date other than one alleged in the indictment as long as the date
is anterior to the presentment of the indictment and within the statutory limitation period. See Sledge
v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Shea v. State, 167 S.W.3d 98, 104 (Tex.
App.—Waco 2005, pet. ref’d). Because the date alleged in the indictment was anterior to the
presentment of the indictment and within the statutory limitation period, Brite’s sufficiency challenge
fails.
Brite’s first issue is overruled.
S.M.’S COMPETENCY TO TESTIFY
In his second issue, Brite contends the trial court abused its discretion in failing to determine
if S.M. understood the nature of her oath to tell the truth. The record, however, establishes that the
trial court questioned S.M. regarding her oath in order to determine whether she understood the
nature of her obligation. After the trial court’s questioning, Brite did not assert any objection to
S.M.’s testimony on the basis of incompetency. See De Los Santos v. State, 219 S.W.3d 71, 80 (Tex.
App.—San Antonio 2006, no pet.); TEX . R. APP . P. 33.1(a). Accordingly, Brite has not preserved
this complaint for our review. See id.
EXPERT TESTIMONY
In his third issue, Brite asserts that the trial court abused its discretion “when it allowed
Detective Miller to testify as an expert in interpreting ‘gesture clusters’ without requiring the State
to lay a proper predicate for the basis and educational training behind her opinion.” Part of the
testimony about which Brite complains is Detective Miller’s testimony that Brite qualified his
answers. This testimony does not relate to any “gesture clusters” which is the issue Brite asserts on
appeal. It would appear that Brite’s issue is directed at the answers Detective Miller gave in
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response to questioning that occurred after Brite’s videotaped interview was played for the jury. In
that line of questioning, Detective Miller was being asked why she continued to ask the same
question over and over again. Detective Miller responded that Brite’s answer changed as the
question was repeatedly asked. Detective Miller was then asked whether she sensed anything from
Brite’s body language or demeanor. Brite objected to the question on the basis that Detective
Miller’s qualifications to interpret body language had not been established. Detective Miller was
then asked about her qualifications to observe individuals and changes in their body language.1
Detective Miller responded that her training and experience showed her what to look for in changes
in body language, and she looks for “clusters of gestures,” i.e., eyes looking off to the left, licking
of lips. Detective Miller previously testified that she had been a police officer for almost 15 years
and had investigated sexual assaults of adults and children by known offenders for three years.
Detective Miller has a degree in criminal justice and is a certified master peace officer and a certified
special investigator of family violence and sex crimes.
We use an abuse of discretion standard in reviewing a trial court’s determination of a
witness’s qualifications. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). Absent a
clear abuse of discretion, a trial court’s decision to admit testimony will not be disturbed on appeal.
Id. Under Rule 702, a witness may qualify to testify by knowledge, skill, experience, training or
education. TEX . R. EVID . 702.
In this case, Detective Miller was a fifteen year veteran officer with three years of experience
in investigating sexual assault cases. She has a degree in criminal justice and is a certified special
investigator of sex crimes. Given her qualifications, the trial court did not abuse its discretion in
… Importantly, Detective Miller’s testimony regarding body language was not directed to the truth of Brite’s
1
responses to her questions, but to the reason for Detective Miller’s repetitive questioning.
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allowing Detective Miller to testify regarding the manner in which she interprets body language.
Detective Miller’s testimony primarily addressed the reason she continued to repeatedly ask Brite
the same question. Moreover, even if we were to assume the testimony was erroneously admitted,
we would conclude its admission was harmless. See TEX . R. APP . P. 44.2(b). Both complainants
testified regarding Brite’s actions. S.M.’s testimony was consistent with the details she told her
mother and Dr. Kellogg. Finally, the jury also viewed the videotaped interview and could make an
independent determination with regard to whether Brite equivocated in his answers.
Brite’s third issue is overruled.
UNCHARGED OFFENSES AGAINST A.B.
In his fourth issue, Brite complains of the admission of additional uncharged extraneous
offenses against A.B. In his brief, Brite refers to Rule 401, Rule 403, Rule 404(b), limitations, lack
of notice, and hearsay. Brite provides record citations to objections made to testimony that the State
sought to elicit from Detective Miller; however, after the discussion of the objections outside the
presence of the jury, the State decided not to pursue that testimony. Brite also provides record
citations to A.B.’s testimony regarding offenses Brite committed against her when she was six years
old and A.B.’s conversation with Nancy M.
Before A.B. testified, Brite’s attorney objected to any testimony regarding offenses for which
limitations had run. The only other objection made by Brite’s attorney regarding the introduction
of A.B.’s testimony about the other offenses was absence of notice under Rule 404(b). Because
these are the only objections regarding A.B.’s testimony relating to the uncharged offenses that were
made at trial, these are the only complaints preserved for our consideration. TEX . R. APP . P. 33.1(a).
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Brite contends that A.B.’s testimony regarding the uncharged offenses was inadmissible
because limitations had run and no notice was given under Rule 404(b). Notwithstanding Rule 404,
however, evidence of other crimes, wrongs, or acts committed by a defendant against a child who
is a victim of an alleged offense under Chapter 21 or Chapter 22 of the Texas Penal Code shall be
admitted for its bearing on relevant matters, including the previous and subsequent relationship
between the defendant and the child. TEX . CODE CRIM . PROC. ANN . art. 38.37, § 2 (Vernon Supp.
2008). In this case, the trial court instructed the jury that it could consider acts that occurred prior
to September 1, 1987, only to “illustrate a prior relationship between the child and the defendant.”
Moreover, the State provided Brite with notice that it intended to introduce evidence that on or about
the 26th day of September, 1985, Brite caused the penetration of A.B.’s sexual organ with Brite’s
sexual organ, caused A.B.’s sexual organ to contact Brite’s sexual organ, caused A.B.’s sexual organ
to contact Brite’s mouth, engaged in sexual contact with A.B. by causing A.B. to touch Brite’s
genitals, and engaged in sexual contact with A.B. by touching A.B.’s genitals. The notice was filed
on October 17, 2007, more than ten days before trial. Moreover, several of the uncharged offenses
had been presented in the original indictment but were subsequently quashed. Accordingly, Brite
had the requisite notice of the State’s intent to introduce evidence of the uncharged offenses, and that
evidence was properly admitted pursuant to article 38.37. See TEX . CODE CRIM . PROC. ANN . art.
38.37, § 3 (Vernon Supp. 2008) (requiring notice to be provided upon request); Scott v. State, 57
S.W.3d 476, 480 (Tex. App.—Waco 2001, pet. ref’d) (stating notice provided ten days before trial
will be presumptively reasonable).
The only other testimony cited by Brite in reference to this issue is A.B.’s testimony that she
spoke with Nancy M. about similar problems S.M. experienced with Brite. The only hearsay
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objection made by Brite with regard to this testimony, however, was sustained. When the question
was re-phrased, no additional objections were made. Accordingly, Brite has not preserved this
complaint for our review. TEX . R. APP . P. 33.1(a).
Brite’s fourth issue is overruled.
ALTERNATIVE EXPLANATION EVIDENCE
In his fifth issue, Brite contends the trial court erred in preventing him from presenting
evidence of alternative explanations for S.M.’s behavior. Specifically, Brite states in his brief,
“Kellogg was allowed to testify that [S.M.’s] anger and lack of sleep were consistent with sexual
abuse.” Brite then contends that the trial court denied “defense evidence that could have provided
alternative explanations for [S.M.’s] behavior;” i.e., her anger and lack of sleep. Specifically, Brite
asserts the trial court erred in excluding evidence that Rick M., S.M.’s father, regularly watched
pornographic movies with [S.M.] and was arrested in June of 2005 and convicted in April of 2006
of indecent exposure.
The State initially responds that Brite’s record citation to Dr. Kellogg’s testimony is
mistaken. Not only did Dr. Kellogg not testify about S.M.’s anger and lack of sleep on the page
cited, but Dr. Kellogg never referred to S.M.’s anger and lack of sleep during any of her testimony.
The State suggests that Brite may have intended to refer to Nancy M.’s testimony that S.M. had
“some anger” about the incident and had trouble sleeping.
Assuming that Brite did intend to refer to Nancy M.’s testimony as a basis for inquiring into
alternative reasons for S.M.’s anger and lack of sleep, Rick M’s indecent exposure conviction was
first mentioned to the trial court before trial when the State made an oral motion in limine. Defense
counsel argued that the conviction was not too remote and “goes into the pattern of behavior of the
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child which the mother says that she had noticed during this particular time period.” Defense
counsel also stated that he suspected the indecent exposure incident was the reason why Rick M. left
the household and moved to his mother’s house. In response to the trial court’s inquiry regarding
who Rick M. was charged with exposing himself to, defense counsel responded that he did not know.
The prosecutor clarified that his understanding was that Rick M. exposed himself to two store clerks
at a convenience store, and it did not involve children. The trial court stated, “it’s not going to come
in unless you can show the relevance. And if it’s an exposure to some store clerks, it’s definitely not
coming in.”
When defense counsel requested permission to cross-examine Nancy M. about this
alternative explanation for S.M.’s anger and lack of sleep, the trial court asked whether defense
counsel had obtained “the additional information about that offense that I had requested.” Defense
counsel stated that he only had a certified copy of the judgment which did not provide any details.
The State reiterated that the offense involved adults and asserted, “This would be a fishing
expedition. He has absolutely no basis and [sic] fact to say that there was any type of inappropriate
touching or exposure or anything like that with respect to [S.M.]. And to allow him to go into that
would be basically just a fishing expedition to get the jury to think that, well, since the dad may have
done this to some people at a store, then he was touching his daughter at home.”
Although a defendant’s right to confrontation and cross-examination is constitutionally
safeguarded, the right is not absolute. Benoit v. State, 87 S.W.3d 668, 673 (Tex. App.—San Antonio
2002, pet. ref’d). The trial court retains great latitude in imposing reasonable limitations on
cross-examination and may properly limit the scope of cross-examination to prevent harassment,
prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant
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interrogation. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); Benoit, 87 S.W.3d at
673. When considering whether a trial court’s decision to exclude testimony is error, we must
determine whether the trial court abused its discretion. Benoit, 87 S.W.3d at 673.
In this case, Brite sought to cross-examine Nancy M. about additional possible explanations
for S.M.’s anger and lack of sleep by inquiring into the possibility that S.M. knew of her father’s
conviction for indecent exposure and that the conviction made S.M. angry. Given that the conviction
was for indecent exposure involving adults and in light of defense counsel’s failure to provide the
additional detail the trial court requested, the trial court did not abuse its discretion in excluding the
indecent exposure evidence to avoid confusion of the issues or marginally relevant interrogation.
See Lopez, 18 S.W.3d at 222; Benoit, 87 S.W.3d at 673.
The other area of evidence that the trial court excluded was evidence that Rick M. regularly
watched pornographic movies in S.M.’s presence. Given the fact that defense counsel only sought
to introduce the evidence to present alternative reasons for S.M.’s anger, the trial court did not abuse
its discretion in limiting the scope of cross-examination to avoid confusion of the issues or
marginally relevant interrogation. See Lopez, 18 S.W.3d at 222. Benoit, 87 S.W.3d at 673. Even
if we were to assume, however, that the trial court abused its discretion in excluding the evidence
with regard to pornography, the exclusion of that evidence would not have resulted in harm.
Any error that improperly limits the right to confrontation, including the constitutional right
to cross-examination, is subject to a harmless error analysis. Saglimbeni v. State, 100 S.W.3d 429,
435 (Tex. App.—San Antonio 2002, pet. ref’d). In performing a harmless error analysis, the
reviewing court must review the entire record and apply a three-prong test. Id. at 435-36. Under the
first prong, the reviewing court must assume that the damaging potential of the cross-examination
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was fully realized. Id. at 436. The court then must review the error in consideration of the following
five factors: (1) the importance of the witness’s testimony; (2) whether the testimony was
cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the
overall strength of the prosecution’s case. Id. Finally, keeping the first two prongs in mind, the
reviewing court must reverse a conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction or punishment. Id.; see also TEX .
R. APP . P. 44.2(a).
In this case, the damaging potential of the testimony if fully realized would have established
another reason S.M. was angry around the time the offenses were committed against her. The reason
S.M. was angry was not an important issue in determining whether Brite had committed the offenses
against her. The testimony was cumulative of the other alternative reasons developed for S.M.’s
anger. The evidence that Rick M. watched pornographic material with S.M. present was not
contradicted. Brite was permitted to cross-examine S.M. with regard to three other potential
explanations for her anger, i.e., Rick M. yelled at her, cursed her with profanity, and her parents were
divorcing. The overall strength of the prosecution’s case rested on S.M.’s outcry to Nancy M.,
S.M.’s testimony regarding Brite’s actions, and the information S.M. reported to Dr. Kellogg.
Accordingly, having applied the first two prongs, we conclude beyond a reasonable doubt that the
exclusion of the evidence, i.e., that S.M. may have been angry around the time in question because
Rick M. watched pornography while she was present, did not contribute to Brite’s conviction or
punishment.
Brite’s fifth issue is overruled.
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BOLSTERING OF WITNESSES
In his sixth issue, Brite asserts the trial court allowed the State to engage in improper
bolstering of its witnesses. Brite provides six record citations to support his argument. The first
citation was to the hearing on Brite’s motion in limine. It is well-settled, however, that a motion in
limine, whether granted or denied, preserves nothing for appellate review. See Griggs v. State, 213
S.W.3d 923, 926 n. 1 (Tex. Crim. App. 2007). No “bolstering” objection is made by defense counsel
on any of the remaining pages of the record cited in Brite’s brief. See TEX . R. APP . P. 33.1(a) (noting
objection is necessary to preserve complaint for appellate review). Moreover, we note that
“[b]ecause of the multifarious origins of ‘bolstering,’ courts have found concern with it as an
objection on its face,” and have questioned whether it remains a “valid objection to preserve error
for review.” See Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009).
Brite’s sixth issue is overruled.
DOUBLE JEOPARDY
In his seventh issue, Brite contends that his rights against double jeopardy were violated
because Count III was a lesser included offense of Count II. In essence, Brite argues that the State
was relying on proof of the same act as a violation of two different penal statutes.
“In order to prevail on a double jeopardy claim, the evidence must show that the two offenses
at issue necessarily arose from ‘one act which could be subject to two different interpretations.’”
Martinez v. State, 212 S.W.3d 411, 422 (Tex. App.—Austin 2006, pet. ref’d) (quoting Ochoa v.
State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998)). In this case, Brite alleges that his conviction
for indecency with a child by contact was based on the same conduct underlying his conviction for
aggravated sexual assault of a child because both offenses arose from the “‘hot wing’ allegation.”
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S.M. testified, however, that Brite touched her genital area four times including the “‘hot wing’
allegation.” Although the indictment alleged two offenses that occurred “on or about” the same date,
it is well settled that the “on or about” language of an indictment allows the State to prove a date
other than the one alleged in the indictment as long as the date is prior to the presentation of the
indictment and not so remote that prosecution is barred by the statute of limitations. See Sledge v.
State, 953 S.W.2d at 256. In this case, S.M.’s testimony established three offenses separate from the
“‘hot wing’ allegation” each of which occurred prior to the presentation of the indictment and within
the applicable statute of limitations period. Accordingly, Brite’s double jeopardy challenge fails, and
his seventh issue is overruled. See Cabral v. State, 170 S.W.3d 761, 764-65 (Tex. App.—Fort
Worth 2005, pet. ref’d) (concluding no double jeopardy violation occurred where complainant
testified regarding two separate and distinct incidents of abuse).
JURY CHARGE
In his eighth issue, Brite complains that the jury charge did not provide adequate language
to ensure that the jury’s verdict was unanimous as to each separate offense. Brite asserts, “Jurors
could easily believe all indecency counts to [S.M.] are one charge and both indecency counts to
[A.B.] are one charge.” The case cited by Brite to support his assertion, Mathonican v. State, 194
S.W.3d 59 (Tex. App.—Texarkana 2006, no pet.), is readily distinguishable from the instant case.
In Mathonican, the defendant was charged with three separate sexual assault offenses; however, the
jury was given only one verdict form. 194 S.W.3d at 63-64. In this case, the jury was given separate
verdict forms for each offense and was instructed, “In order to return a verdict, each juror must agree
to that verdict.” As a result, the jury charge was adequate to ensure that the jury’s verdict was
unanimous as to each separate offense. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim.
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App. 2007) (noting trial judge commits no error in submitting the various offenses alleged in
separate counts of an indictment in separate verdict forms and that the simplest way to ensure
offenses are decided unanimously is to submit separate verdict forms). Brite’s eighth issue is
overruled.
CLOSING ARGUMENT
In his ninth issue, Brite contends that the trial court erred in overruling his objection to
improper closing argument at punishment. Brite’s complaint focuses on the following argument:
Now, there’s a little bit of difference with respect to parole. And I’m not
going to get into a whole long discussion because we can’t, under the law, talk too
much about it. But the law changed with respect to parole for the counts involving
[S.M.] and the counts involving [A.B.]. There was a different set of laws in effect
at the time that the offenses were committed against [A.B.]. And the parole law that
applies to those offenses is different. The time that he’s assessed –
[Defense counsel]: Your Honor, I’ll object. I think we’re getting beyond the
instructions of the Jury Charge as to what parole law is and isn’t.
[Prosecutor]: I’m not, Judge. I’m going to track it exactly.
THE COURT: All right. Do it and move on.
The prosecutor then proceeded to explain without further objection that Brite would be eligible for
parole with regard to the offenses involving S.M. after he served half of the time assessed. The
prosecutor also explained without objection that Brite would be eligible for parole on a life sentence
after thirty years.
We overrule Brite’s ninth issue for two reasons. First, we agree with the State that Brite did
not obtain a ruling on his objection. TEX . R. APP . P. 33.1(a). Second, at the time the objection was
made, the prosecutor “did not convey any information beyond what was properly contained in the
charge” when he explained that the parole eligibility rules governing the offenses against S.M. were
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different from the rules governing the offenses against A.B. Taylor v. State, 233 S.W.3d 356, 359
(Tex. Crim. App. 2007). “The explanation simply ensured that the jury understood the language set
out in the instructions.” Id. Because “[n]othing in this case indicates that the prosecutor’s
explanations went beyond an attempt to clarify the meaning of the jury instructions,” especially prior
to the objection made by defense counsel, the trial court did not err in overruling the objection.
Brite’s ninth issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Rebecca Simmons, Justice
DO NOT PUBLISH
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