Amos W. Jackson, Sr. v. State ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00129-CR
No. 10-07-00130-CR
No. 10-07-00131-CR
No. 10-07-00132-CR
No. 10-07-00133-CR
No. 10-07-00134-CR
AMOS W. JACKSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court Nos. 18,090; 18,091; 18,092;
18,093; 18,095; and 18,096
MEMORANDUM OPINION
Amos W. Jackson was charged with three counts of aggravated sexual assault
and three counts of indecency with a child. A jury convicted him of all six counts and
sentenced him to forty years in prison and a $10,000 fine on each of the assault counts
and ten years in prison and a $10,000 fine on each of the indecency counts. Jackson
challenges: (1) the trial court’s failure to require the State to make an election as to each
offense; (2) the denial of his motion to quash the indictments; and (3) his ability to hear
the evidence against him or confront witnesses because of a hearing impairment. We
affirm.
FACTUAL BACKGROUND
Brenda Daniels,1 Jackson’s step-daughter, testified that, beginning in fifth grade,
Jackson “bump[ed] certain places,” such as her breasts and “between the crease in [her]
legs,” while tickling or wrestling with her. This occurred in the living room and
happened a lot. No particular incident stood out in her mind.
When Brenda was in sixth grade, Jackson began placing his hands on her breasts
and vaginal area. He also forced Brenda to touch his penis over his clothing. When this
happened, Brenda felt a “little lump.” This “just kind of escalated from there to actually
going under his clothes and actually touching his penis.” This occurred once in her
mother’s bedroom and the other times occurred in her own bedroom or the living room.
Before every act, Jackson made Brenda promise that she would not tell anyone. No
particular incident stood out in her mind.
Jackson eventually made Brenda place her mouth on his penis. He told her not
to tell anyone or they would get into trouble. Brenda testified that “once [he] started
like it just kept going.” She could not recall whether Jackson was laying down,
standing, or clothed. Her “pants would be down to [her] knees.” Jackson experienced
1 “Brenda Daniels” is a pseudonym.
Jackson v. State Page 2
an erection during these acts. These acts occurred in her bedroom or the living room
and lasted a couple minutes. No particular incident stood out in her mind.
Jackson also placed his mouth on Brenda’s vagina and would “feel around with
his mouth and stuff.” These acts occurred in Brenda’s bedroom. Her pants would be
pulled down. She did not recall whether Jackson was clothed.
Brenda further testified that Jackson penetrated her vagina with his finger. If
her mother was at home, this would happen while Jackson and Brenda were driving in
the car from one side of their property to the other. These acts also occurred in the
living room or Brenda’s bedroom. Both Jackson and Brenda were clothed during these
acts, but Brenda’s pants would be unbuttoned and unzipped. Jackson placed his hand
down Brenda’s pants and under her underwear. He seemed to enjoy what he was
doing. No particular incident stood out in her mind.
All of the above described acts occurred during the day, when Brenda and
Jackson were home alone, and took place a couple of times a week. The abuse began in
sixth grade and continued through Brenda’s eighth grade year of school.2
Jackson was charged with aggravated sexual assault by penetrating Brenda’s (1)
mouth with his sexual organ; (2) sexual organ with his mouth; and (3) sexual organ
with his finger. He was further charged with indecency by: (1) touching Brenda’s
breast; (2) touching Brenda’s genitals; and (3) causing Brenda to touch his genitals.
2 Brenda also testified that, on two occasions, Jackson made her watch a pornographic film. When
Brenda was in eighth grade, Jackson attempted to penetrate her vagina with his penis on two occasions,
once in the fall of 2004 and once in April 2005. Both acts occurred in Brenda’s bedroom. She and Jackson
were unclothed. Jackson was not charged with penetrating Brenda’s sexual organ with his sexual organ.
Jackson v. State Page 3
ELECTION
In his first issue, Jackson argues that the trial court erred by not requiring the
State to elect the acts upon which it intended to rely for conviction.
After the State rested, Jackson requested that the State elect the acts upon which
it would rely for each offense. The trial court responded, “prior to argument of counsel
and preparation of the Charge, the State will elect.” During the charge conference,
Jackson objected that the charge failed to “specifically elect which event the State is
relying on.” Based on Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006), the trial
court overruled the objection because “where there are numerous occasions alleged and
no specific date given in the testimony, [] it is virtually impossible to elect a specific
incident, and the Court has required a unanimity finding in each case.”
Under the general rule, when “one act of intercourse is alleged in the indictment
and more than one act of intercourse is shown by the evidence in a sexual assault trial,
the State must elect the act upon which it would rely for conviction.” O’Neal v. State,
746 S.W.2d 769, 771 (Tex. Crim. App. 1988); see Phillips v. State, 193 S.W.3d 904, 909-10
(Tex. Crim. App. 2006). Before the State rests, the trial court has discretion in directing
the State to make an election. O'Neal, 746 S.W.2d at 771. Once the State rests its case in
chief, upon a timely request by the defendant, the trial court must order the State to
make an election and failure to do so is error. Phillips, 193 S.W.3d at 909.
The parties do not dispute that the evidence shows that each offense occurred on
multiple occasions. However, the State argues that Jackson’s request for an election was
untimely because it came during the charge conference. We disagree. The day before
Jackson v. State Page 4
the charge conference, the State rested subject to rulings on the admissibility of
evidence. After those rulings were made, Jackson requested an election. His request
was timely. See Phillips, 193 S.W.3d at 909.
The State also argues that no election was required because an exception to the
general rule applies where “several acts of sexual abuse are committed by one
continuous act that was part of the same transaction.” According to the State, the
continuous sexual abuse offense reflects the Legislature’s belief that “cases of repeated
sexual abuse often fall into the category where no election should be required.” See TEX.
PEN. CODE ANN. § 21.02 (Vernon Supp. 2008). However, this section was not effective
until September 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, art. 1, § 1.17, 2007
Tex. Gen. Laws 1120, 1127-28. Jackson’s trial took place in April 2007.
In Phillips, the Court of Criminal Appeals considered a similar argument.
Relying in part on Steele v. State, 523 S.W.2d 685 (Tex. Crim. App. 1975), the State argued
that it “was not required to elect because the facts adduced showed only one
continuous course of conduct or transaction.” Phillips, 193 S.W.3d at 910. The Court of
Criminal Appeals rejected this argument:
…Steele applies only where the evidence shows that several acts of
intercourse were committed by one continuous act of force and threats
that are “part and parcel of the same criminal transaction.” In Steele,
unlike in the cases presently before us, two acts of intercourse occurred
approximately two hours and twenty miles apart. The logic of Steele is
hardly applicable to the facts before us, in which the complainants were
molested at different locations over a period of months or years.
Id. at 910-11. As in Phillips, we are not persuaded by the State’s argument. Because each
indictment alleged one offense, but the evidence showed that each offense occurred
Jackson v. State Page 5
more than once, the trial court erred by failing to instruct the State to elect. See O’Neal,
746 S.W.2d at 771; see also Phillips, 193 S.W.3d at 909-10.
We must now decide whether the error contributed to Jackson’s conviction or
punishment. See Dixon, 201 S.W.3d at 734-36; see also Phillips, 193 S.W.3d at 913. Harm
is determined by analyzing the four purposes of the election rule: (1) to protect the
accused from the introduction of extraneous offenses; (2) to minimize the risk that the
jury might choose to convict, not because one or more crimes were proved beyond a
reasonable doubt, but because all of them together convinced the jury the defendant
was guilty; (3) to ensure unanimous verdicts, that is, all of the jurors agreeing that one
specific incident, which constituted the offense charged in the indictment, occurred; and
(4) to give the defendant notice of the particular offense the State intends to rely upon
for prosecution and afford the defendant an opportunity to defend. Phillips, 193 S.W.3d
at 910, 913-14; Dixon, 201 S.W.3d at 733-36.
Protection from Extraneous Offenses
Evidence of other crimes, wrongs, or acts committed by the defendant against
the child victim is admissible for purposes of showing: (1) the state of mind of the
defendant and the child; and (2) the previous and subsequent relationship between the
defendant and the child. TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon Supp. 2008).
Jackson was not entitled to protection from evidence of extraneous offenses involving
Brenda. See id.; see also Dixon, 201 S.W.3d at 734-35.
Jackson v. State Page 6
Risk of Conviction
“This case is not concerned with evidence of different activities from different
sources that a jury might perceive to ‘add up’ to the defendant being guilty even though
no individual offense was proven beyond a reasonable doubt.” Dixon, 201 S.W.3d at
735. Rather, Brenda was the only source of the multiple offenses committed by Jackson,
and she did not testify to a “number of varied incidents with differing details that might
have incrementally added to the idea that the defendant must have done something to
provoke the plethora of stories about his activities.” Id. She provided a sequence of
events that occurred for each offense and stated that these incidents occurred a couple
times a week over a period of years. See id. She was either credible or she was not and
the number of times that each offense occurred does not impact her credibility. Id. We
cannot say that the jury convicted Jackson for any reason other than that each of the six
offenses was proved beyond a reasonable doubt.
Notice and Unanimity
Citing Phillips and Farr v. State, 140 S.W.3d 895 (Tex. App.—Houston [14th Dist.]
2004), aff’d 193 S.W.3d 904 (Tex. Crim. App. 2006), Jackson focuses on the notice and
unanimity purposes of the election rule.
In Phillips, the Court of Criminal Appeals considered two cases. See Phillips, 193
S.W.3d at 906. Phillips was convicted of three counts of sexual assault. See Phillips v.
State, 130 S.W.3d 343, 347 (Tex. App.—Houston [14th Dist.] 2004), aff’d 193 S.W.3d 904
(Tex. Crim. App. 2006). On the first two counts, oral and digital penetration, the victim
testified in detail about two specific instances, one that occurred at Phillips’s apartment
Jackson v. State Page 7
and one that occurred at a hotel, as evidenced by a hotel receipt. Id. at 353. She also
testified that these acts occurred often, at Phillips’s apartment; no specific date was
provided, but they may have occurred weekly. Id. On the third offense, penetration of
the victim’s mouth by Phillips’s sexual organ, the victim testified in detail about one
specific instance and “also testified generally that the activity continued at least
intermittently from the summer of 2000 until the spring of 2001.” Id. at 354. The trial
court did not require the State to elect. See id. at 348-49.
The Fourteenth Court held that “clear testimony exist[ed] for two specific
occurrences of both digital and oral penetration, along with further testimony--often
vague on the date, much less vague on describing the acts--that they often occurred.”
Id. “[B]oth offenses were described in detail more than once; yet, it was completely
unclear to the jury which act the State would rely upon for conviction.” Id. “This
would have allowed the jury to convict because some of the jurors relied on one offense
and others relied on another.” Id. at 354. As for the third offense, “the jury would have
known the specific act on which the State relied” because the testimony revealed the
details of one act performed at a hotel. Id. “As to other occurrences, the testimony was
only that the behavior was repeated, without any detail as to how, exactly when, or
where.” Id. The Court reversed Phillips’s convictions on the first two counts, but not
the third. See id. at 358.
Farr was convicted of two counts of aggravated sexual assault. See Farr, 140
S.W.3d at 897. K.R. testified in detail about four specific acts of oral sex that occurred in
the summer of 2001 and continued for several months. Id. She identified what
Jackson v. State Page 8
happened during each incident, where in the apartment each took place, and “a general
time line of when the events occurred, sometimes indicating her age and grade in
school, the time of year the incident took place, or the approximate amount of time that
had passed since the previous incident.” Id. at 900. K.R. also testified that Farr
“digitally penetrate[d] her vagina ‘every chance he got.’” Id. at 897. The trial court
denied Farr’s request for an election. See id. at 899.
As to the oral sex offense, the Fourteenth Court held that “it is unclear from the
testimony which incident the jury may have relied upon to convict” because K.R. had
testified in detail about four specific incidents. Id. at 900. This created the potential that
the jury might “convict because some of the jurors relied upon one incident and others
relied upon another.” Id. As to the digital penetration offense, K.R. testified “only
generally,” stating that Farr “would penetrate her with his finger ‘every chance he got’”,
which “occurred when her mother and her sister were in other rooms of the
apartment.” Id. at 901. “She could not recall how many times these incidents occurred,
but stated that they did not occur in connection with the incidents of oral sex.” Id. Due
to the generality of these statements, the Court could not be certain that the error did
not contribute to Farr’s conviction. Id. It reversed Farr’s convictions. See id.
On appeal, the Court of Criminal Appeals held that the Fourteenth Court applied
the proper harm standard in both cases: “failure to require the State to elect upon timely
request results in constitutional error, and that the court of appeals was indeed required
to reverse the convictions unless it found beyond a reasonable doubt that the error did
Jackson v. State Page 9
not contribute to the convictions or had but slight effect.” Phillips, 193 S.W.3d at 914.
The Fourteenth Court’s judgments were affirmed. See id.
Dixon and Hulsey v. State, 211 S.W.3d 853 (Tex. App.—Waco 2006, no pet.) also
shed some light on this issue. In Dixon, the victim did not testify about one distinct,
detailed incident, but “described the manner in which appellant sexually assaulted her
and said that it occurred numerous times.” Dixon, 201 S.W.3d at 734. Specifically, the
victim “related a sequence of events that occurred every time appellant sexually
assaulted her.” Id. at 732. Dixon would undress, remove the victim’s underwear, touch
her “private parts” with his hand, and touch her “private parts” with his “private
parts.” Id. This occurred one hundred times and, with one exception, always occurred
at night. Id. The victim provided no other details. Id. Thus, “all of the incidents
presented in the case were presented with equal specificity, and, except for the fact that
one incident occurred during the day, none of the incidents were distinguished in any
manner from each other.” Id. at 734. The Court of Criminal Appeals found “beyond a
reasonable doubt that the error in failing to require an election did not contribute to
appellant’s conviction or punishment.” Id. at 736.
In Hulsey, a jury convicted Hulsey of two counts of sexual assault, seven counts
of indecency with a child by contact, and one count of indecency with a child by
exposure. See Hulsey, 211 S.W.3d at 855. Latoya testified that when she was twelve or
thirteen, Hulsey began getting in bed with her and would lie next to her. Id. at 856. He
eventually began rubbing her breasts and genitals. Id. He did this every morning that
he could when Latoya’s mother was at work, more than ten times and so many times
Jackson v. State Page 10
that she could not remember how many. Id. Hulsey began having intercourse with
Latoya when she was approximately fifteen. Id. Over about a two-year period, Hulsey
sexually assaulted her more than fifty times and that the number may have been one
hundred times, which is what she had told police. Id. Latoya’s two sisters also saw
Hulsey on top of Latoya. Id. Latoya did not testify to specific instances of sexual
assaults or indecency. Id. at 855.
The trial court denied Hulsey’s motion to require the State to elect. Id. Hulsey
argued that this denial was error as to two counts of sexual assault and two counts of
indecency by contact. Id. As to the two counts of indecency by contact with Latoya’s
genitals and breast, we found, beyond a reasonable doubt, that the trial court’s failure to
require the State to elect did not contribute to Hulsey’s conviction or punishment
because Latoya related a sequence of events that occurred every time Hulsey assaulted
her and provided no other details. Id. at 856 (citing Dixon, 201 S.W.3d at 734-36). As to
the two counts of sexual assault, a specific incident had been identified for each count;
thus, it would have been clear as to which incidents the State was relying on for
conviction. Id. at 857 (citing Phillips, 130 S.W.3d at 355).
Unlike the victims in Phillips and Farr, Brenda did not testify in detail about any
specific incidents of charged conduct. Thus, the jurors were not given a choice of
incidents from which to choose for conviction on each charged offense. Neither was
Brenda’s testimony as general as that of the victim in Farr. In Farr, K.R. merely testified
that the particular offense occurred “every chance [Farr] got,” that they were alone
during the offense, and that the offenses did not occur during the incidents of oral sex.
Jackson v. State Page 11
Here, as to each offense, Brenda identified how the offenses occurred, the school year
during which the offenses occurred, where the offenses occurred, what time of day the
offenses occurred, and how often the offenses occurred. She also provided some details
of what took place during each offense.
Like the victims in Dixon and Hulsey, Brenda described a sequence of events that
occurred each time Jackson committed a particular offense. See Dixon, 201 S.W.3d at
732; see also Hulsey, 211 S.W.3d at 856. All the incidents for each offense were presented
with equal specificity and, except for the fact that the offenses occurred in different
locations in or around the home or their property, none of the incidents were
distinguished in any manner from each other. See Dixon, 201 S.W.3d at 734.
Moreover, the unanimity requirement was emphasized during trial. In closing,
defense counsel reminded the jury that: (1) the evidence consists of “assaults or
indecencies going on over a long period of time”; (2) “before you can convict Amos
[Jackson] of any one of these you’ve got to unanimously agree that the State has proved
one transaction, one event, beyond a reasonable doubt”; (3) “if the case has been proven
on any of these, you’ve got to agree on one event”; and (4) “you’ve got to agree on a
specific event, that all of the elements of that particular charge are proved beyond a
reasonable doubt on that particular case.” In its jury charge, the trial court instructed
the jury that before “reaching a verdict of guilty under any individual indictment tried
in this trial, the jury must agree that all of the elements charged in the individual
indictment under consideration occurred in a single incident in the manner alleged in
Jackson v. State Page 12
that individual indictment.” We cannot say that Jackson was deprived of a unanimous
verdict. See Dixon, 201 S.W.3d at 735; see also Hulsey, 211 S.W.3d at 856.
Neither can we say that Jackson was deprived of notice or an opportunity to
defend against the particular offenses on which the State intended to rely for conviction.
Other than the locations in the home where the offenses occurred, there was no
distinction between Brenda’s account of each offense. See Dixon, 201 S.W.3d at 736.
Jackson was not deprived of notice or an opportunity to defend.
In summary, we find, beyond a reasonable doubt, that the trial court’s failure to
force the State to make an election did not contribute to Jackson’s conviction or
punishment. See Dixon, 201 S.W.3d at 734-36; see also Hulsey, 211 S.W.3d at 856. We
overrule Jackson’s first issue.
MOTION TO QUASH
Jackson’s second issue challenges the denial of his motion to quash the
indictments. We review a trial court’s ruling on a motion to quash an indictment for
abuse of discretion. State v. Flournoy, 187 S.W.3d 621, 623 (Tex. App.—Houston [14th
Dist.] 2006, no pet.).
Each indictment charged Jackson with committing an offense that occurred “on
or about” a specific date. Jackson filed a motion to quash the indictments on grounds
that each offense was alleged to have occurred more than once and “it is impossible to
know which of the multiple offenses was the actual offense authorized by the Grand
Jury for prosecution.” The trial court denied the motion. On appeal, Jackson contends
that he could not “determine that the offense for which he was convicted was the very
Jackson v. State Page 13
same event or set of facts indicted by the Grand Jury and that at least nine members of
the Grand Jury returning this indictment agreed upon the same set of facts.”
In Weatherby v. State, 61 S.W.3d 733 (Tex. App.—Fort Worth 2001, pet. ref’d),
Weatherby was charged with two counts of aggravated sexual assault of a child. See
Weatherby, 61 S.W.3d at 735. The first count alleged, “on or about December 24, 1998,
aggravated sexual assault of S.W. by contact of her sexual organ to the mouth or sexual
organ of appellant.” Id. The second count alleged indecency with a child by contact of
her breast or genitals, but the jury charge submitted this count as a lesser included
offense of aggravated sexual assault. Id. The trial court denied Weatherby’s motion to
quash the indictment. Id. On appeal, Weatherby argued that “there was no way of
knowing whether the grand jury indicted him on the same facts presented to the petit
jury at trial” because the indictment did not (1) “specifically allege the incident that he
was going to be tried for”; or (2) “specify the acts constituting the alleged offenses.” Id.
The Fort Worth Court noted that the “indictment tracked the language of the respective
statutes” and that, pretrial, the State had elected a primary offense. Id. at 736. The trial
court had “specifically asked the prosecutor whether that was the offense presented to
the grand jury and the prosecutor responded that there was no evidence to the
contrary.” Id. Because there was no evidence that the “offenses presented to the grand
jury differed from the offenses proved at trial, the trial court did not abuse its
discretion.” Id. (citing Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997)).
In Sledge, the indictment charged Sledge with “aggravated sexual assault and
indecency with a child, alleging that the offenses occurred on or about August 31,
Jackson v. State Page 14
1988.” Sledge, 953 S.W.2d at 254. Sledge filed a motion requesting notice of extraneous
offenses. Id. In its response, the State listed “several instances of sexual abuse” and at
the pre-trial hearing, the “State revealed that the conduct of appellant towards the
victim had been continuous over several years.” Id. At Sledge’s request, the State
elected to “proceed on two specifically described episodes which occurred when the
child was ten and eleven, because those incidents were most clear in her mind.” Id. On
appeal, Sledge argued that “the question is whether the State may obtain a conviction
by proof of a different act from the act upon which the grand jury indicted - - indeed by
proof of an act which the State has labeled ‘extraneous.’” Id. at 254. However, there
was “no evidence that the testimony presented to the grand jury related to offenses
other than those proven at trial.” Id. at 256.
Although the State made elections in both Weatherby and Sledge, but no elections
were made in this case, Brenda did not testify to any specific incidents from which the
grand jurors could choose. There is simply no evidence that the “offenses presented to
the grand jury differed from the offenses proved at trial.” Weatherby, 61 S.W.3d at 736;
see Sledge, 953 S.W.2d at 256. The trial court did not abuse its discretion by denying
Jackson’s motions to quash. See Weatherby, 61 S.W.3d at 736; see also Sledge, 953 S.W.2d
at 256. We overrule Jackson’s second issue.
ABILITY TO HEAR THE EVIDENCE AND CONFRONT WITNESSES
In issue three, Jackson contends that he could not hear the evidence presented at
trial or confront the witnesses against him in violation of article 38.31 of the Code of
Jackson v. State Page 15
Criminal Procedure, the Sixth and Fourteenth Amendments of the United States
Constitution, and article 1, section 10 of the Texas Constitution.
At trial, Jackson informed the trial court that he was having difficulty hearing the
proceedings. The trial court obtained a set of headphones, which Jackson used for the
remainder of trial. After trial, Jackson filed a motion for new trial, alleging that he was
deaf, could not hear the proceedings, and did not receive “adequate hearing devices,”
thereby depriving him of the rights to “be confronted by his accusers,” “fully
understand the nature of the proceedings,” and “take part in his own defense.”
At a hearing on the motion, Jackson testified that he has an 82.5 percent hearing
loss and completed a sign language course. He was not fluent, but could understand
sign language when used slowly. He received an award for his ability to work despite
his inability to hear without hearing aids. During voir dire, he could not hear the
panel’s responses. When using the headphones, he could hear the witnesses, but could
not hear the testimony of the sexual assault nurse examiner when she turned to draw
diagrams on the board, the testimony of witnesses when the microphones went out, or a
video that had been played. He received headphones on the second day of trial.
On cross-examination, Jackson told the prosecutor that he could not hear her,
that she needed to speak slowly so he could read her lips, and that the “high pitch” of
her voice caused him to have trouble hearing. When asked, Jackson later told the
prosecutor, who was using a microphone, that he could hear her because she was close
to him and he was reading her lips. He admitted that he had appeared before the trial
court several times before trial, including arraignment and pretrial hearings. He
Jackson v. State Page 16
claimed that, during his bail hearing, he advised the trial court of his hearing problems.
He had not previously informed the trial court of his 82.5 percent hearing loss, but
explained that he had not been asked. Even after receiving the headphones, he told his
attorney that he was having problems hearing and his attorney expressed his own
hearing difficulties. They informed the judge who instructed them to tap on the
microphones to make them “work properly.” He did not tell the trial court of the need
for an interpreter, but explained that he cannot “understand sign very fast.” Neither
did he ask for any form of writing regarding the witnesses’s testimony.
On redirect, Jackson stated that his previous court appearances took place at the
bench, which enabled him to read the judge’s lips. On re-cross, Jackson stated that he
can hear with his hearing aids when he is “out in the open where there’s not so much of
this bouncing around in a room with background noise.”
The prosecutor testified that for the first time during a break, Jackson advised the
trial court of his hearing problems. The trial court offered to search for a hearing device
to plug into the sound system. Upon return from the break, the trial court told Jackson
that he would have to contact someone to obtain a hearing device. Defense counsel did
not object to proceeding with voir dire until a device could be obtained. When the
device was provided, the trial court inquired as to whether Jackson could hear and the
defense confirmed that he could hear fine. The defense made no other indications that
Jackson was having trouble hearing.
The trial court placed his own recollection on the record, which he subsequently
detailed in findings of fact and conclusions of law. The trial court’s findings of fact state
Jackson v. State Page 17
that: (1) before trial, it was not advised of Jackson’s hearing impairment, testimony
regarding an impairment was not presented, and it was not apparent that Jackson had
any difficulty hearing; (2) in the morning on the first day of trial, defense counsel
advised the trial court that Jackson was having trouble hearing; (3) defense counsel did
not object to proceeding until a hearing device could be obtained; (4) during lunch,
Jackson received a set of headphones attached to an audio device plugged into the
sound system and indicated that “he could hear fine”; (5) Jackson used the device
during the remainder of trial; (6) it was not apparent that Jackson had any further
trouble hearing and there were no additional objections on the issue; and (7) Jackson
“appeared to confer with his attorney during the trial without difficulty and thus it was
not apparent to the Court that he had difficulty hearing during the rest of the trial.”
The trial court’s conclusions of law state that: (1) the trial court “devised a
suitable remedy” to which Jackson and his counsel agreed; and (2) Jackson was not
denied due process, the opportunity to confront witnesses, the “right to participate in
his trial or the ability to understand the proceedings in his case.” The trial court denied
Jackson’s motion.
On appeal, Jackson argues that he qualifies as a “deaf person;” thus, the trial
court was required to either provide an interpreter or, if the defendant is unable to
understand sign language, “fashion a remedy suitable to overcome the defendant’s
disability.” Despite the provided headphones, Jackson maintains that he could not hear
“essential portions” of the trial.
Jackson v. State Page 18
A trial court must provide an interpreter for a deaf person. See TEX. CODE CRIM.
PROC. ANN. art. 38.31(a) (Vernon Supp. 2008). “The statute implements the
constitutional right of confrontation, which includes the right to have trial proceedings
presented in a way that the accused can understand.” Salazar v. State, 93 S.W.3d 339,
340 (Tex. App.—Texarkana 2002, pet. ref’d). If the defendant cannot understand sign
language, the trial court must “fashion a remedy suitable to overcome the defendant’s
disability.” Lincoln v. State, 999 S.W.2d 806, 809 (Tex. App.—Austin 1999, no pet.). “A
defendant’s failure to object or request relief does not waive his confrontation right if it
is otherwise apparent that he cannot hear or understand the proceedings.” Id.
In Lincoln, Lincoln argued that the trial court failed to “make proper
accommodations for his hearing impairment,” depriving him of his right to confront
witnesses and right to an interpreter. See id. at 807. Lincoln was not deaf, but had
difficulty hearing. Id. at 809. During trial, he advised the trial court of this problem. Id.
The trial court allowed Lincoln to move or the “speakers repeated themselves to permit
[Lincoln] to hear.” Id. Lincoln “did not indicate at the time that these arrangements
were unsatisfactory.” Id. He was also “addressed by the court and responded
appropriately, indicating that he heard and understood what was said,” and “twice
took the stand and testified without difficulty.” Id. at 809-10. Only after trial ended did
Lincoln tell the trial court that he could not hear much of the time. Id. at 810.
Because the trial court observed Lincoln throughout trial, it was in the “best
position to judge the credibility of [Lincoln’s] claim that he did not hear the
proceedings.” Id. “While the failure of appellant or his attorney to tell the court earlier
Jackson v. State Page 19
that appellant could not hear the proceedings is not a bar to raising the issue on appeal,
it is relevant to the question whether the district court knew or should have known that
additional remedies were needed.” Id. The Austin Court held that, “[c]onsidering what
the district court was told and observed during the trial, we are not persuaded that the
court failed to take constitutionally adequate steps to assure that [Lincoln] heard and
understood the proceedings.” Id.
In Salazar, Salazar complained that “when it became apparent he could not hear
the witnesses because of his hearing impairment, the court was required to provide him
an interpreter or some other means of communication that would permit him to
participate in the proceedings.” Salazar, 93 S.W.3d at 340. However, “Salazar was
addressed by the court or by counsel and responded appropriately, indicating that he
heard and understood what was said.” Id. at 341. Not until the victims finished
testifying did Salazar tell the trial court that he could not hear the testimony. See id.
“Until then the trial judge had every reason to believe Salazar was able to understand
the proceedings and testimony, and no reason to the contrary.” Id. Thus, the trial court
“could not be expected to take action to ensure that the testimony’s content was
effectively communicated to Salazar.” Id. Because the trial court was in the best
position to judge the credibility of Salazar’s complaint, the Texarkana Court was “not
persuaded [that] the court failed to take constitutionally adequate steps to ensure
Salazar heard and understood the proceedings.” Id.
Jackson briefly testified outside the jury’s presence as to proceeding or resting his
case. His attorney asked to be informed if Jackson could not hear him. The record
Jackson v. State Page 20
indicates that Jackson did not have difficulty testifying, but responded appropriately
and appeared to hear and understand what was being said.
Jackson had also appeared before the court on several occasions before trial and
never indicated that he could not hear or understand what was being said. Once
Jackson advised the trial court of his hearing difficulties, the trial court provided the set
of headphones connected to the sound system. According to the record, this was done
before voir dire. The trial court asked the defense if the device satisfied Jackson and
counsel responded that Jackson could hear fine. He did not indicate either at that time,
or any other time, “that these arrangements were unsatisfactory.” Lincoln, 999 S.W.2d at
809. Thus, the trial court had every reason to believe that Jackson could hear and
understand the proceedings and, without information to the contrary, could not be
expected to take any other action. Only after trial ended did Jackson inform that trial
court of his 82.5 percent hearing loss or his inability to hear portions of the proceedings.
His failure to inform the trial court, at an earlier time, that he could not hear the
proceeding, is relevant to the whether the trial court knew or should have known of
Jackson’s need for “additional remedies.” Id.
Having observed Jackson throughout trial, the trial court was in the “best
position to judge the credibility of [his] claim that he did not hear the proceedings.”
The record does not indicate that the trial court “failed to take constitutionally adequate
steps to assure that [Jackson] heard and understood the proceedings.” Lincoln, 999
S.W.2d at 810; see Salazar, 93 S.W.3d at 341. We overrule issue three.
Jackson v. State Page 21
Because we have overruled Jackson’s three issues, we affirm the judgment in
each of the six cases listed above.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 3, 2008
Do not publish
[CRPM]
Jackson v. State Page 22