487 S.W.3d 737 (Tex.App.-Fort Worth 2016), 02-14-00460-CR, Estes v. State

Docket Nº02-14-00460-CR
Citation487 S.W.3d 737
Opinion JudgeTERRIE LIVINGSTON, J.
Party NameRUSSELL LAMAR ESTES, APPELLANT v. THE STATE OF TEXAS, STATE
AttorneyFOR APPELLANT: BRIAN SALVANT, FORT WORTH, TEXAS; ADAM L. ARRINGTON, FORT WORTH, TEXAS. FOR STATE: SHAREN WILSON, CRIMINAL, DISTRICT ATTORNEY; DEBRA A. WINDSOR, CHIEF OF POST-CONVICTION; STEVEN W. CONDER, JACOB MITCHELL & MELINDA WESTMORELAND, ASSISTANT CRIMINAL DISTRICT ATTORNEYS TARRANT COUNTY D...
Case DateMarch 24, 2016
CourtCourt of Appeals of Texas

Page 737

487 S.W.3d 737 (Tex.App.-Fort Worth 2016)

RUSSELL LAMAR ESTES, APPELLANT

v.

THE STATE OF TEXAS, STATE

No. 02-14-00460-CR

Court of Appeals of Texas, Second District, Fort Worth

March 24, 2016

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY. TRIAL COURT NO. 1388628R. TRIAL COURT JUDGE: HON. GEORGE WILLIAM GALLAGHER.

FOR APPELLANT: BRIAN SALVANT, FORT WORTH, TEXAS; ADAM L. ARRINGTON, FORT WORTH, TEXAS.

FOR STATE: SHAREN WILSON, CRIMINAL, DISTRICT ATTORNEY; DEBRA A. WINDSOR, CHIEF OF POST-CONVICTION; STEVEN W. CONDER, JACOB MITCHELL & MELINDA WESTMORELAND, ASSISTANT CRIMINAL DISTRICT ATTORNEYS TARRANT COUNTY DISTRICT ATTORNEY'S OFFICE, FORT WORTH, TEXAS.

OPINION

TERRIE LIVINGSTON, J.

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In ten issues, appellant Russell Lamar Estes appeals his convictions for five counts of sexual assault and two counts of indecency with a child by contact. He argues that a statutory provision that made his sexual assault convictions first-degree felonies rather than second-degree felonies is unconstitutional as it applies to him, that the trial court committed error during voir dire by sustaining the State's objection to a question that he posed to the jury panel, that the trial court abused its discretion by excluding certain evidence and by admitting other evidence, and that the trial court erred by not giving timely limiting instructions concerning certain evidence. We affirm the trial court's judgments of conviction for indecency with a child in all respects, modify the trial court's judgments on sexual assault to reflect convictions for second-degree felonies, reverse those judgments as to punishment, and remand the sexual assault cases to the trial court for a new trial on punishment.

Background Facts

K.A. (Katie)1 grew up in Saginaw, and while she lived there, she met J.E. (Jason).

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Katie's and Jason's families became friendly with each other. Eventually, when Katie and Jason were both in high school, Katie began regularly visiting and staying overnight at Jason's house.2 Katie and Jason began a romantic relationship.

During Katie's trips to Jason's house, Jason's father, appellant,3 began talking with her. For example, appellant commented on Katie's clothing and told her that she could confide in him. Katie thought that appellant was funny, smart, and kind, and she began to trust him. Appellant made Katie " feel safe."

When Katie first started spending nights at Jason's house, she slept on a couch in the living room. Appellant slept by himself in a room upstairs; his wife slept in a different room. Katie eventually began sleeping with appellant on a futon in his room. Her relationship with appellant became physical. One night while she was in his room, appellant rubbed her stomach and touched her sexual organ. When he had finished doing so, he told her to not tell anyone and said that she would not be believed if she did so.

After that occasion, over the course of approximately one year, appellant's touching of Katie's body continued and progressed. They had sexual intercourse on multiple occasions and engaged in other sexual acts with each other. On some occasions, appellant tied parts of Katie's body to the futon or to each other with leather before having sex with her. Once, appellant used a paddle on Katie while having sex with her. Appellant showed Playboy magazines to Katie and told her that she could be a Playboy model.

When appellant and Katie had sexual encounters, he ensured that her phone was off and away from them; he feared that someone could be listening to what was occurring. After the encounters, appellant washed Katie's clothes, and she took showers.

During Katie's sophomore year in high school, she planned on staying at Jason's house for the entire week of spring break. One day while she was there, everyone in the house except for her and appellant went to a movie store. Appellant, who was drunk, took Katie into the bedroom where his wife slept. He told her that he wanted to perform oral sex on her. Appellant did so and also touched Katie's breasts for about a minute. Katie left the bedroom and walked into the kitchen, but appellant followed her, pushed her against a counter, told her that he loved her, and rubbed her sexual organ over her clothes. Appellant's roughness with Katie on that occasion scared her, and she began to disclose to her family that appellant had sexually abused her. Katie was fifteen years old at that time.

Katie's mother and step-father took her to the Saginaw Police Department (SPD). Katie was scared when speaking with the police because she " didn't ever want [appellant's sexual abuse of her to] come out."

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SPD Officer Tami McCluskey spoke with Katie. Officer McCluskey sent Katie to be physically examined by Barbara Ann Hynson (a sexual assault nurse examiner) and to be interviewed by Carrie Paschall (a forensic interviewer).4 Katie told Hynson that she had been " sexually assaulted by her boyfriend's father for approximately the past year." She described specific instances of sexual abuse to Hynson.

Katie was talkative and emotional during the interview with Paschall. She told Paschall about appellant's sexual abuse of her and gave sensory and peripheral details concerning the abuse. After hearing what Katie said to Paschall, the police obtained an arrest warrant for appellant and a search warrant for his residence. Inside the residence, the police found, among other items, pieces of leather of various sizes, a whip, and sexually-oriented magazines.

When appellant realized that Katie had alleged that he had sexually abused her, he called the police. Joseph Bozenko, an SPD officer, received a dispatch and responded to the call. Appellant told Officer Bozenko that Katie had told Jason that on the prior Saturday night, appellant had become intoxicated and had touched Katie's breasts. Appellant admitted to Officer Bozenko that he had been drinking that evening and stated that he could not remember what had happened. He did not admit that he had touched Katie's breasts. To Officer Bozenko, appellant " seemed extremely nervous."

A grand jury indicted appellant with twenty-three charges, but the State proceeded to trial on the first seven charges, which included five counts of sexual assault and two counts of indecency with a child by contact. The five counts of sexual assault each included an allegation that because appellant was legally married, he was prohibited from marrying Katie or from living with her under the appearance of being married. Thus, under section 22.011(f) of the penal code, the indictment alleged that appellant had committed first-degree felonies with respect to the sexual assault charges.5 Appellant filed a motion to quash the sexual assault charges, contending that section 22.011(f) is unconstitutional, facially and as applied to him, because it treats married people more harshly than unmarried people and therefore violates his due process and equal protection rights. Before the trial began, the trial court denied appellant's motion to quash. Appellant also filed many other pretrial documents, including an election for the jury to assess his punishment if he was convicted.

At trial, appellant pled not guilty to all of the charges. During the trial, appellant reurged his motion to quash, and the trial court again denied it. After receiving the parties' evidence and arguments, the jury found appellant guilty of five counts of sexual assault and two counts of indecency with a child by contact. The jury also found that Katie was a person whom appellant was prohibited from marrying or from living with under the appearance of being married.6

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The jury then heard more evidence concerning appellant's punishment and assessed twelve years' confinement on each sexual assault charge and ten years' confinement on each charge for indecency with a child by contact. For the charges concerning indecency with a child, the jury recommended appellant's placement on community supervision. The trial court sentenced appellant in accordance with the jury's verdicts in the sexual assault cases; the court ordered some of the sentences to run concurrently and others to run consecutively. The court followed the jury's recommendation and placed appellant on community supervision with respect to the charges for indecency with a child by contact; the court suspended the imposition of appellant's sentences for those charges. Appellant brought this appeal.

Constitutionality of Section 22.011(f) As Applied

In his first issue, appellant contends that section 22.011(f) of the penal code is unconstitutional as the section applies to him...

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15 practice notes
  • Hodge v. State, 080416 TXCA3, 03-15-00418-CR
    • United States
    • Texas Court of Appeals of Texas
    • August 4, 2016
    ...court ruled on request or refused to rule and that "complaining party objected to the refusal"); Estes v. State, 487 S.W.3d 737, 761 (Tex. App.-Fort Worth 2016, pet. filed) (noting that for complaint to be preserved, "there must be an adverse ruling b......
  • 500 S.W.3d 612 (Tex.App.-Austin 2016), 03-15-00418-CR, Hodge v. State
    • United States
    • Texas Court of Appeals of Texas
    • August 4, 2016
    ...ruled on request or refused to rule and that " complaining party objected to the refusal" ); Estes v. State, 487 S.W.3d 737, 761 (Tex.App.--Fort Worth 2016, pet. filed) (noting that for complaint to be preserved, " there must be an adverse ruling by the tr......
  • Johnson v. State, 073117 TXCA12, 12-16-00218-CR
    • United States
    • Texas Court of Appeals of Texas
    • July 31, 2017
    ...reveal as little detail as possible regarding evidentiary matters of which Appellant complains. See id.; see also Estes v. State, 487 S.W.3d 737, 754 n.19 (Tex. App.-Fort Worth 2016, pet. granted). [2] The prosecutor asked the child victim to identify the parts of the body. T......
  • McLemore v. State, 081816 TXCA2, 02-15-00229-CR
    • United States
    • Texas Court of Appeals of Texas
    • August 18, 2016
    ...of errors." Thus, we overrule appellant's sixth issue complaining of cumulative error. See Estes v. State, 487 S.W.3d 737, 762 (Tex. App.-Fort Worth 2016, pets. filed); Meza v. State, No. 02-14-00277-CR, 2015 WL 5770748, at *3 (Tex. App.-Fort Worth Oct. 1, 2015......
  • Request a trial to view additional results
15 cases
  • Hodge v. State, 080416 TXCA3, 03-15-00418-CR
    • United States
    • Texas Court of Appeals of Texas
    • August 4, 2016
    ...court ruled on request or refused to rule and that "complaining party objected to the refusal"); Estes v. State, 487 S.W.3d 737, 761 (Tex. App.-Fort Worth 2016, pet. filed) (noting that for complaint to be preserved, "there must be an adverse ruling b......
  • 500 S.W.3d 612 (Tex.App.-Austin 2016), 03-15-00418-CR, Hodge v. State
    • United States
    • Texas Court of Appeals of Texas
    • August 4, 2016
    ...ruled on request or refused to rule and that " complaining party objected to the refusal" ); Estes v. State, 487 S.W.3d 737, 761 (Tex.App.--Fort Worth 2016, pet. filed) (noting that for complaint to be preserved, " there must be an adverse ruling by the tr......
  • Johnson v. State, 073117 TXCA12, 12-16-00218-CR
    • United States
    • Texas Court of Appeals of Texas
    • July 31, 2017
    ...reveal as little detail as possible regarding evidentiary matters of which Appellant complains. See id.; see also Estes v. State, 487 S.W.3d 737, 754 n.19 (Tex. App.-Fort Worth 2016, pet. granted). [2] The prosecutor asked the child victim to identify the parts of the body. T......
  • McLemore v. State, 081816 TXCA2, 02-15-00229-CR
    • United States
    • Texas Court of Appeals of Texas
    • August 18, 2016
    ...of errors." Thus, we overrule appellant's sixth issue complaining of cumulative error. See Estes v. State, 487 S.W.3d 737, 762 (Tex. App.-Fort Worth 2016, pets. filed); Meza v. State, No. 02-14-00277-CR, 2015 WL 5770748, at *3 (Tex. App.-Fort Worth Oct. 1, 2015......
  • Request a trial to view additional results