Richard Del Lee v. the State of Texas ( 2021 )

Opinion filed December 30, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00388-CR
__________
RICHARD DEL LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR52634
OPINION
The jury convicted Richard Del Lee of continuous sexual abuse of a young
child or children and assessed his punishment at confinement for life in the
Institutional Division of the Texas Department of Criminal Justice. Appellant
challenges his conviction in two issues. We affirm.
Background Facts
The State charged Appellant by indictment with one count of continuous
sexual abuse of a young child or children. The State alleged that Appellant
intentionally or knowingly committed “two or more acts of sexual abuse against
[K.C.] and [S.M.]” during a period of thirty days or more in duration, when
Appellant was seventeen years of age or older and when K.C. and S.M. were younger
than fourteen years of age.
Appellant is K.C.’s and S.M.’s step-grandfather. K.C. was sixteen at the time
of trial. When she was a young girl, she had visitation with her biological father
every other weekend, primarily at Appellant’s house. These visitations began when
K.C. was four years old and continued until she was eleven years old. She testified
that, shortly after she started visiting Appellant’s house, Appellant began
inappropriately touching her. These acts of inappropriate touching continued nearly
every weekend that K.C. visited her biological father. K.C. testified that she stopped
going to Appellant’s house when she was eleven years old because “[she] was tired
of it.”
In July of 2018, K.C. went to a party for her younger half-brother. During
this party, K.C. noticed that “[S.M.] kind of was acting shy, like closed off.” K.C.
testified: “I used to act like that all the time, you know, really shy all the time. I just
had a feeling that I knew something was happening.” K.C. then approached Malissa
Minica, her former stepmother, and explained what Appellant had done to her.
Minica then asked S.M. if anything had ever occurred at Appellant’s house that made
her uncomfortable. S.M. explained that Appellant had touched her inappropriately
in the computer room in his home. Additionally, S.M. told Minica that Appellant
had told her to keep his actions a secret.
2
S.M. was twelve at the time of trial. S.M. also visited Appellant’s house every
other weekend growing up. S.M. testified that Appellant inappropriately touched
her multiple times during her visits to his house. Appellant first started
inappropriately touching S.M. when she was seven years old, and the last incident
occurred when she was ten years old.
Analysis
In his first issue, Appellant asserts that the trial court erroneously allowed two
outcry witnesses to testify without conducting a hearing, outside the presence of the
jury, regarding the reliability of those witnesses. Article 38.072 allows the
admission of a hearsay statement describing sexual abuse made by a child victim to
an outcry witness. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2021).
Article 38.072, section 2(b) sets out the requirements for the admission of an outcry
witness’s testimony. Section 2(b)(2) requires “that the trial court find[], in a hearing
conducted outside the presence of the jury, that the statement is reliable based on the
time, content, and circumstances of the statement.” Id.; see Sanchez v. State, 354
S.W.3d 476, 487–88 (Tex. Crim. App. 2011).
Appellant objected on the basis of hearsay to the testimony of two outcry
witnesses: Katherine Shores, a forensic interviewer, and Kyle McCardle, an assistant
district attorney in Midland County. Appellant made these hearsay objections when
Shores and McCardle were called by the State as witnesses, but prior to their
testimony. The trial court overruled the hearsay objections at the time they were
made without conducting a hearing outside the presence of the jury. The trial court
also granted Appellant’s request for a running objection to both witnesses’
testimony.
3
Appellant asserts that, based upon his hearsay objection, the trial court should
have conducted a hearing under Article 38.072 to determine whether the outcry
statements were reliable. In response, the State contends that Appellant cannot
challenge the lack of a hearing because he did not specifically request a hearing. In
advancing this argument, the State points out that we made the following statement
in Smith v. State: “[A] timely hearsay objection at trial gives rise to the requirement
that the trial court conduct an Article 38.072, section 2(b)(2) reliability hearing.”
131 S.W.3d 928, 932 (Tex. App.—Eastland 2004, pet. ref’d). The State contends
that this statement in Smith was dictum and that we should adopt a contrary view as
reflected in Cates v. State, 72 S.W.3d 681, 698 (Tex. App.—Tyler 2001, no pet.)
(holding that a defendant waives his opportunity for an outcry witness reliability
hearing under Article 38.072 by not specifically asking for one).
In Smith, we relied on Long v. State for the proposition that a hearsay objection
is sufficient to invoke the procedural requirements of Article 38.072, including the
requirement for a hearing. Smith, 131 S.W.3d at 932 (citing Long v. State, 800
S.W.2d 545, 547 (Tex. Crim. App. 1990)). In addition to Smith, we have cited Long
for this proposition in other opinions. See Carney v. State, No. 11-15-00249-CR,
2017 WL 4545272, at *1 (Tex. App.—Eastland Oct. 12, 2017, pet. ref’d) (mem. op.,
not designated for publication); Evans v. State, No. 11-13-00296-CR, 2015 WL
1501663, at *5 (Tex. App.—Eastland Mar. 31, 2015, pet. ref’d) (mem. op., not
designated for publication) (“A timely hearsay objection at trial gives rise to the
requirement that the trial court conduct an Article 38.072 hearing.”); Gonzalez v.
State, No. 11-12-00027-CR, 2014 WL 97295, at *4–5 (Tex. App.—Eastland Jan. 9,
2014, no pet.) (mem. op., not designated for publication); see also Soto v. State,
No. 11-19-00214-CR, 2021 WL 3235881, at *5 (Tex. App.—Eastland July 30, 2021,
4
no pet.) (mem. op., not designated for publication) (“Article 38.072, section 2(b) sets
out the requirements for the admission of an outcry witness’s testimony over a
hearsay objection.”). Accordingly, we have determined that the preservation
question was decided in Long—a timely hearsay objection gives rise to the
requirement that the trial court conduct an Article 38.072 hearing. See Evans, 2015
WL 1501663, at *5; Gonzalez, 2014 WL 97295, at *4–5.
We further note that by its express terms, Article 38.072 sets out a statutory
exception to the hearsay rule. It sets out the requirements “that must be met before
an outcry witness may testify.” Sanchez, 354 S.W.3d at 484. These requirements
include the hearing outside the presence of the jury to determine if the outcry
statement is reliable. Id. at 484–85.
The State further contends that Appellant’s hearsay objections were premature
because Appellant objected to the testimony of Shores and McCardle before they
answered any questions. In this regard, Appellant made his hearsay objections after
the State called Shores and McCardle as witnesses and after they were each sworn
as witnesses. The Court of Criminal Appeals addressed the timing of a hearsay
objection in Long. 800 S.W.2d at 548. The court held that a hearsay objection made
before the outcry witness begins to testify is timely to invoke the requirements of
Article 38.072. Id.; see Gonzalez, 2014 WL 97295, at *5. Furthermore, as required
by Article 38.072, section 2(b)(1), the State filed a notice of its intent to rely on the
statute for the outcry testimony from Shores and McCardle. Thus, Appellant’s
hearsay objections to the testimony of Shores and McCardle can reasonably be
viewed as timely objections under the statute. Accordingly, Appellant’s hearsay
objections to the outcry testimony from Shores and McCardle were timely.
5
Because the trial court did not first hold a hearing to determine whether the
outcry statements made to Shores and McCardle were reliable, as required by the
statute, the trial court erred when it admitted the statements made by K.C. to Shores
and by S.M. to McCardle. Having determined that the trial court erred, we must
now determine whether the error is reversible under TEX. R. APP. P. 44.2(b), which
applies to nonconstitutional errors. See Campos v. State, 317 S.W.3d 768, 779 (Tex.
App.–Houston [1st Dist.] 2010, pet. ref’d) (the erroneous admission of a hearsay
statement constitutes nonconstitutional error). When an appellate court applies
Rule 44.2(b), it must disregard a nonconstitutional error unless the error affects the
appellant’s substantial rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.
2011). An appellate court should not overturn a criminal conviction for
nonconstitutional error “if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or influenced the jury only
slightly.” Id. (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)).
Duncan v. State is instructive on the question of whether Appellant suffered
harm from the trial court’s failure to hold the required reliability hearing. 95 S.W.3d
669 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In Duncan, the First Court
of Appeals held that a victim’s testimony was sufficiently similar to cure any error
in the admission of the outcry witness’s testimony. See id. at 672. Here, K.C.’s.
testimony was similar to that of Shores. K.C. testified that Appellant inappropriately
touched her almost every time she visited his house. Shores testified that K.C. told
her about two incidents in which Appellant inappropriately touched her.
Additionally, K.C. testified about an incident in which Appellant forced her to touch
his genitals. Likewise, Shores testified that K.C. told her about this same incident.
Moreover, S.M. testified that Appellant inappropriately touched her more than one
6
time. Similarly, McCardle testified that S.M. told him that Appellant touched her
more than three times.
The improper admission of evidence is harmless when the same facts are
proven by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999). Because the same facts related by Shores and McCardle
were also addressed in the testimony of K.C. and S.M., the failure of the trial court
to conduct a reliability hearing under Article 38.072 was harmless. We overrule
Appellant’s first issue.
In Appellant’s second issue, he contends that the trial court committed error
by advising him not to testify. Appellant essentially contends that the trial court
coerced him into not testifying at trial. Furthermore, he asserts that the error
constituted structural error that is not subject to a harm analysis.
A defendant has a right to testify at his own trial, and such a right is
fundamental and personal to the defendant. Johnson v. State, 169 S.W.3d 223, 232
(Tex. Crim. App. 2005). A defendant’s right to testify at trial is a fundamental
constitutional right. Rock v. Arkansas, 483 U.S. 44, 52–53, 53 n.10 (1987). It is
derived from the Fifth and Sixth Amendments to the United States Constitution, is
personal to the defendant, and cannot be waived by counsel. Id. at 52–53. However,
a defendant may knowingly and voluntarily waive this right. See Smith v. State, 286
S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009) (citing Emery v. Johnson, 139 F.3d
191, 198 (5th Cir. 1997)). Trial counsel bears the primary responsibility to inform
a defendant of his right to testify, but the ultimate decision of whether he testifies
belongs to the defendant. Johnson, 169 S.W.3d at 235.
Appellant’s trial counsel originally indicated that Appellant was going to
testify in his own defense at the guilt/innocence phase. He did so by calling
7
Appellant as a witness. The prosecutor asked to approach the bench, at which time
she suggested that Appellant should be admonished about his right to testify. The
trial court then excused the jury and began questioning Appellant about his decision
to testify.
The trial court initially advised Appellant that he could not be compelled to
testify. The trial court further advised Appellant that if he chose not to testify, the
jury would be instructed that it could not use his silence against him. After these
admonishments, Appellant informed the trial court that he wanted to testify.
However, in the span of one page of the reporter’s record, Appellant informed the
trial court that he was not going to testify. Appellant subsequently indicated that he
had not discussed his decision to testify with his trial counsel. 1 The trial court
offered Appellant the opportunity to visit with his trial counsel about the matter and
Appellant accepted this opportunity. After the recess to confer with counsel,
Appellant informed the trial court that he would be testifying.
On appeal, Appellant contends that the following exchange influenced his
ultimate decision and, therefore, denied him the right to testify:
THE COURT: But on the other hand, it is your decision to make.
And if you feel like that you want this jury to hear from you and think
that it would be -- nobody, I suppose, Mr. Lee, knows what’s best for
you better than you do. You certainly should listen to advice of counsel.
Even if your attorney were to say, Mr. Lee, I don’t think you ought to
testify, you would still be free to testify, you know. On the other hand
if he says, I want you to testify and thinks you ought to, that doesn’t
make any difference. You can still say, I don’t want to, I’m not going
to.
1
Appellant had previously informed the trial court that he had discussed his decision to testify with
his trial counsel.
8
So you should listen to the advice of counsel, and your counsel
may encourage you to testify, he may encourage you not to testify. I
don’t know. But the fact of the matter is, that decision is yours, not
anyone else’s.
[APPELLANT]: All right.
THE COURT: And so it’s yours to make.
Are you now telling me that after considering the matter you do
wish to go ahead and testify?
[APPELLANT]: Well, since you say about counsel, Ed said I
shouldn’t testify, so I’m going to go with counsel and not testify. That’s
my final word.
THE COURT: Okay. Mr. Lee, I have talked enough now that I
feel like if I said anymore it could be construed as having tried to
encourage you one way or the other, and I’m not going to do that.
So are you telling me that your decision not to testify is final?
[APPELLANT]: Final.
The record does not support Appellant’s contention that the trial court coerced
him into not testifying by following the advice of his counsel. Appellant changed
his mind several times regarding his decision to testify or not before ultimately
deciding that he would not testify. The above-quoted portion of the reporter’s record
reflects that the trial court informed Appellant that it was his decision to make—not
that of the trial court or Appellant’s trial counsel. The tenor of the trial court’s
questions and remarks, including those indicating that Appellant should listen to the
advice of trial counsel, 2 was neither overbearing nor coercive as Appellant suggests.
See Garza v. State, 248 S.W.3d 742, 744–45 (Tex. App.—Houston [1st Dist.] 2008,
2
As noted above, trial counsel bears the primary responsibility to inform a defendant of his right to
testify. Johnson, 169 S.W.3d at 235.
9
no pet.) (addressing warnings given by the trial court to a witness about the perils of
testifying). Accordingly, we overrule Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 30, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
10