Charles Richard Willits, Jr. v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00015-CR
Charles Richard Willits, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0994567, HONORABLE JON N. WISSER, JUDGE PRESIDING
A jury found appellant Charles Richard Willits, Jr. , guilty of one count of
indecency with a child by exposure, two counts of indecency with a child by contact, and six
counts of sexual assault of a child. See Tex. Penal Code Ann. §§ 21. 11(a), 22.011(a)(2) (West
Supp. 2000). The district court assessed punishment at imprisonment for ten years for the first
count, and at imprisonment for fifteen years for the remaining counts. We affirm the judgments
of conviction.
Appellant was the youth pastor at a large Austin church. The complainant began
attending youth services and participating in other youth activities at the church in 1994.
Appellant befriended the boy, who had recently moved to Austin with his mother and sister
following the divorce of his parents. Their relationship became sexual during the summer of
1995, when the complainant was fourteen. Appellant took the complainant on an overnight trip
to Arlington for a baseball game. Appellant “cuddled” with the complainant in their motel room,
lying on top of the boy and hugging him for about ten minutes while both were fully clothed.
Appellant began to purchase gifts for the complainant, and took him to movies and dinner on a
regular basis. The complainant said that appellant’s attention made him feel “privileged” and
“special.” The complainant often spent the night at appellant’s house. After appellant’s wife
went to sleep, he and the boy would “cuddle” in the spare bedroom, now without their clothing.
Appellant and the complainant fondled and masturbated each other, and on a few occasions
engaged in oral sex. Once, appellant placed his penis in the complainant’s anus. The complainant
estimated that he and appellant engaged in sexual activities at least twenty times.
Appellant ended the sexual relationship with the complainant in January 1996.
Appellant told the complainant that he, the complainant, was “not in a good relationship with
God” and they could no longer be close. Appellant also told the complainant that church members
“wouldn’t believe in God any more” if the complainant told them about appellant’s conduct.
Needless to say, the complainant’s experiences with appellant left him confused, agitated, and
depressed. In April 1998, he told his mother and several friends what had happened.
Appellant contends the district court should have granted a mistrial when the
complainant referred to extraneous misconduct during his testimony. The complainant was asked
by the prosecutor why he was “here today talking about this embarrassing subject.” He answered,
“I’m here today because . . . who knows what other people he could have done this to. And I
know that I’m probably not the only one. I mean, I don’t know, but it just seems to me that it
could easily have happened to somebody else.” Appellant objected to the complainant
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“speculating” and testifying about alleged extraneous conduct. The objection was sustained and
the jury was instructed to disregard, but appellant’s motion for mistrial was overruled.
A mistrial is called for when there is error so prejudicial that continuation of the
trial would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). As a general
rule, testimony erroneously referring to or implying extraneous offenses can be rendered harmless
by an instruction to disregard. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).
An instruction will be insufficient only if the evidence was so clearly calculated to inflame the
minds of the jury or is of such damning character as to suggest the impossibility of removing the
harmful impression from the jurors’ minds. Id. The denial of a mistrial motion is reviewed for
an abuse of discretion. Ladd, 3 S.W.3d at 567.
The complainant did not state as a fact that appellant had engaged in similar conduct
with other persons, but merely indicated his suspicion that appellant might have done so. The
remark, if improper, was not so inflammatory or unfairly prejudicial as to be incurable by the
court’s instruction to disregard. The court did not abuse its discretion by overruling the motion
for mistrial. Issue one is overruled.
Appellant also moved for a mistrial during the testimony of Kathlene Mann, one
of the first persons to whom the complainant described his activities with appellant. Mann was
asked if she noticed any “distressing behavior” on the complainant’s part after his outcry. She
answered, “A great deal. I mean, he was—
he was very upset at the thought that—
that this had to
become public knowledge.” Appellant objected on the ground of hearsay. Once again, the
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objection was sustained and the jury was instructed to disregard, but appellant’s motion for
mistrial was overruled.
A statement of the declarant’s then existing state of mind or emotion is admissible
as an exception to the hearsay rule. Tex. R. Evid. 803(3). Moreover, both the complainant and
other witnesses testified to the anguish felt by the complainant, his depression, and his erratic
behavior both before and after the sexual abuse became public. Reversible error is not presented.
Issue two is overruled.
Appellant brings forward two issues regarding the testimony of Kenneth Lanning,
a Supervisory Special Agent with the Federal Bureau of Investigation. For the past twenty years,
Lanning has been assigned to the National Center for the Analysis of Violent Crime, where he
specializes in the study of sexual victimization of children. Lanning testified that his studies and
experience have led him to classify persons who sexually victimize children into two broad
categories: (1) situational offenders, who victimize children because they are weak or available;
and (2) preferential offenders, who have a true sexual preference for children. Among
preferential offenders, the most common behavioral pattern is the seduction type. According to
Lanning, a seduction type preferential offender seduces, or grooms, his child victim in the same
manner a man might seduce a woman. After finding a child to whom he is attracted, the offender
will shower the child with attention and affection, while gradually seeking to lower the child’s
inhibitions and manipulating the child into sexual activity. Lanning believes that boys between
the ages of ten and sixteen are the most susceptible to such seduction.
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Lanning testified that seduction type offenders usually have very good interpersonal
skills, particularly with children, and often choose a hobby or occupation that will put them in
contact with children who fit their age and gender preference. Such offenders tend to be of above
average intelligence and from higher socioeconomic backgrounds. It is not uncommon for them
to be married. Their sexual preference for children reveals little about their personality, and they
rarely fit the stereotype our society has of child sexual abusers.
Appellant first contends that Lanning’s testimony was inadmissible under Texas
Rules of Evidence 702. Rule 702 provides for the admission of expert testimony when “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue.” 1 The proponent of scientific or technical evidence under rule 702
has the burden of demonstrating by clear and convincing evidence that the evidence is both reliable
and relevant. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant does not
question Lanning’s expertise and concedes that Lanning’s testimony was reliable. Appellant urges
that Lanning’s testimony was not relevant. In differentiating relevance from reliability, the Texas
Court of Criminal Appeals stated:
Relevance is by nature a looser notion than reliability. Whether evidence
“will assist the trier of fact” and is sufficiently tied to the facts of the case is a
simpler, more straight-forward matter to establish than whether the evidence is
sufficiently grounded in science to be reliable. This is not to say that the relevancy
inquiry will always be satisfied. . . . The expert must make an effort to tie
pertinent facts of the case to the scientific principles which are the subject of his
testimony. Establishing this connection is not so much a matter of proof, however,
as a matter of application.
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Appellant also cites rule 402, which generally provides for the admission of all relevant
evidence and the exclusion of irrelevant evidence. Tex. R. Evid. 402.
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Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).
Appellant argues that Lanning’s testimony was not adequately tied to the facts of
this case. Lanning did not read the offense report or witness statements, did not hear any of the
testimony, and was not asked any hypothetical questions based on the facts of this case. His
testimony was based solely on his study and experience over the course of his career. Lanning
expressed the hope that his testimony would give the jurors “ some insight and understanding about
certain kinds of offenders” that would help them assess and evaluate the evidence before them.
Appellant points out, however, that the prosecutor had questioned the jurors during voir dire
regarding the characteristics and methods of sex offenders. Appellant argues that the jurors were
shown to have a good understanding of child sexual abuse and did not need further information
of the sort provided by Lanning.
The issue in Jordan was the admissibility of a defense expert’s testimony regarding
the reliability of eyewitness testimony. As appellant does here, the State argued against the
admission of the proffered testimony on the ground that the subject matter was within the common
knowledge of the jurors. See id. at 556. The court of criminal appeals answered that argument
as follows:
While jurors might have their own notions about the reliability of eyewitness
identification, that does not mean they would not be aided by the studies and
findings of trained psychologists on the issue. If the scientific basis of [the
expert’s] testimony is sound (an issue not now before us and one we do not now
decide), it could have aided the jury by either validating or calling into question
their own inclinations. If a juror’s “gut” or common sense beliefs about certain
factors were to be called into question by [the expert’s] testimony on the issue, the
juror would be prompted to reconsider preconceived notions that he might
otherwise have been unaware of when reviewing the facts of the case. On the
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other hand, if a juror’s preconceived notions were confirmed by [the expert’s]
testimony on the issue, the juror could proceed with greater confidence on that
issue.
Id. In the same way, Lanning’s testimony validated, challenged, or supplemented any
preconceptions the jurors in this cause might have had regarding child sexual abuse and child
sexual abusers. We also note, although this argument is not specifically raised by appellant, that
Lanning’s testimony sufficiently “fit” the facts of this case. See id. The district court did not
abuse its discretion by overruling appellant’s objection to the relevance of Lanning’s testimony.
Alternatively, appellant urges that Lanning’s testimony should not have been
admitted because its relevance was outweighed by the danger of unfair prejudice. See Tex. R.
Evid. 403. Appellant argues that the testimony added little to what the jury already knew about
child sexual abuse, and therefore was not needed by the State. We have already explained,
however, that Lanning possessed an expertise concerning the behavior of sexual victimizers of
children that could have assisted the jury in understanding and evaluating the evidence. See Nenno
v. State, 970 S.W.2d 549, 562 (Tex. Crim. App. 1998). Appellant asserts that Lanning’s
testimony raised the possibility that the jury would vote to convict because appellant “fits the
description of a sex offender. ” Lanning repeatedly testified that there was no single “profile” by
which to identify those who sexually victimize children. We are not persuaded that Lanning’s
testimony had an undue tendency to suggest decision on an improper basis. See Cohn v. State,
849 S.W.2d 817, 820 (Tex. Crim. App. 1993). No abuse of discretion is shown. Issue three is
overruled.
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In issue four, appellant contends the district court erred by refusing to give this
limiting instruction regarding Lanning’s testimony:
You have heard evidence in this cause from Special Agent Kenneth Lanning
of the FBI. You are instructed that his testimony was not intended and may not be
used by you to determine whether [the complainant’s] claims are true. You are
further instructed that Agent Lanning’s testimony was not intended and may not be
used by you as any evidence of the character of the Defendant in this cause.
Appellant relies on Texas Rule of Evidence 105(a), which provides that when evidence is
introduced for a limited purpose only the court should instruct the jury to restrict its consideration
of the evidence to its proper scope.
We understand appellant to argue that Lanning’s testimony was evidence of “other
crimes, wrongs or acts” that was not admissible to prove his character, although it may have been
admissible for another purpose. See Tex. R. Evid. 404(b). This argument fails because Lanning
did not testify to other acts committed by appellant, and there is no indication in the record that
Lanning’s testimony was offered for a limited purpose. Appellant cites no authority supporting
the notion that a trial court should instruct the jury not to consider relevant evidence in
determining the defendant’s guilt. Under the circumstances shown, it would have been improper
for the court to single out Lanning’s testimony and comment on it in a special instruction. See
Caldwell v. State, 818 S.W.2d 790, 799 (Tex. Crim. App. 1991); Tex. Code Crim. Proc. Ann.
art. 36.14 (West Supp. 2000). Issue four is overruled.
Appellant’s next issue concerns this portion of the State’s opening jury argument
at the guilt stage of trial:
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And so a 13-year-old kid from a Kansas farm comes to the big city, and he
gets all the answers [to his questions about religion] from this person right here.
It comes right out of his mouth. The same person that will put his hands on his
face and baptize him in the name of the Father and the Son and the Holy Ghost
will use those same hands to touch him, the same mouth that he speaks to him with
with Biblical [sic] to seduce him and touch him with his mouth. I can’t stand to
be in the room with him myself.
(Emphasis added.) Appellant objected to the prosecutor’s personal remark. The prosecutor
apologized and asked the court to instruct the jury to disregard. The court gave the instruction,
then overruled appellant’s motion for mistrial. The State concedes that the prosecutor’s remark
was improper.
An instruction to disregard improper jury argument is generally sufficient to cure
the error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000) (arguing facts not
in record); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (attack on defense
counsel); Long v. State, 823 S.W.2d 259, 269-70 (Tex. Crim. App. 1991) (comment on
defendant’s failure to testify). In the opinions on which appellant relies, defense objections to
improper arguments were overruled and no instructions to disregard were given. See Wilson v.
State, 938 S.W.2d 57, 58-59 (Tex. Crim. App. 1996); Bray v. State, 478 S.W.2d 89, 90 (Tex.
Crim. App. 1972). We believe the district court’s admonition was sufficient to cure the error and
overrule issue five.
Appellant orally moved for a mistrial while the jury was deliberating his guilt. The
basis for the motion was alleged jury misconduct. At a hearing on the motion, a person who had
attended the trial testified that she overheard a conversation between jurors Sodaquist, Stovall, and
Taylor during a break in which one of them said, “They’re grasping or they’re grabbing at straws
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now and they don’t have very many left. ” Defense counsel’s legal assistant also testified at the
hearing. She said she overheard juror Stovall tell jurors Sodaquist and Gutman during a break
following the testimony of appellant’s wife, “You know that bitch was suspicious.” The motion
for mistrial was overruled.
After appellant had been convicted and sentenced, he filed a written “ motion for
mistrial and arrest of judgment” again raising the alleged improper jury conversations. A hearing
was held on the motion at which jurors Gutman, Sodaquist, and Stovall testified. Gutman did not
recall having any conversation with Sodaquist and Stovall regarding any suspicions appellant’s
wife might have had, and believed it unlikely that the alleged statement was made. Sodaquist and
Stovall testified that they did not remember any conversation during which the phrase “grasping
at straws” was used. Neither was asked about the other alleged remark. The district court
overruled the motion at the conclusion of the hearing. Appellant subsequently filed a motion for
new trial citing the alleged jury misconduct and other grounds. This motion was overruled by
operation of law.
In issue six, appellant contends the court erred by overruling the oral motion for
mistrial. Appellant’s brief does not present any argument or cite any authority in support of this
contention. See Tex. R. App. P. 38. 1(h) (appellant’s brief must contain argument and authorities
for contentions made). Issue six is overruled as inadequately briefed. See Dunn v. State, 951
S.W.2d 478, 480 (Tex. Crim. App. 1997).
Issue seven complains of the overruling of the written motion for mistrial and of
the motion for new trial. Appellant had the burden of proving the alleged misconduct. See
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Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). Because there was conflicting
testimony as to whether the alleged conversations occurred, there was no abuse of discretion in
overruling the motions on that ground. See id.
Among the other grounds alleged in the motion for new trial was the contention that
the court materially erred by admitting FBI Agent Lanning’s testimony. Appellant reurges this
contention on appeal, but merely refers us to the argument under issue three. Having overruled
that issue, we need not discuss the matter further. Appellant also contended that he was denied
effective assistance of counsel when he was arrested during trial for an offense committed in
another county. While appellant repeats this contention on appeal, he offers no supporting
argument and cites no authorities. See Dunn, 951 S.W.2d at 480. Issue seven is overruled.
The district court prepared separate judgments for each count. The judgments of
conviction are affirmed.
Jan P. Patterson
Before Chief Justice Aboussie, Justices B. A. Smith and Patterson
Affirmed
Filed: January 25, 2001
Do Not Publish
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