Adair v. State
| Decision Date | 12 December 2013 |
| Docket Number | NO. 03-11-00318-CR,03-11-00318-CR |
| Parties | Thomas H. Adair, Sr., Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. 12,816, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING
A jury convicted appellant Thomas H. Adair, Sr., of two counts of the offense of aggravated sexual assault of a child. See Tex. Penal Code § 22.021. For each count, punishment was assessed at ten years' imprisonment and a $10,000 fine, but the district court suspended imposition of each sentence and placed Adair on community supervision for five years. In four issues on appeal, Adair asserts that the jury verdict was not unanimous, that the district court abused its discretion in admitting evidence of Adair's pre-arrest silence and retention of counsel, and that trial counsel rendered ineffective assistance. We will affirm the judgments of conviction.
BACKGROUND
The jury heard evidence that Adair had sexually assaulted his granddaughter, G.T., who was 15 years old at the time of trial. G.T. testified that, when she was approximately five years old, Adair began touching her "in not so public places." G.T. explained that "it started one day whenwe were in the pool and he was going to throw me, like, into the water, and when he was picking me up he put his hand underneath my bathing suit bottoms and started touching me." G.T. specified that Adair touched the inside of her sexual organ using his fingers. After that, G.T. testified, "it happened almost every time we went swimming together." According to G.T., the "touching" was not limited to digital penetration. She explained that, one day, while Adair was babysitting G.T. at his house, he entered the room where she was playing video games, closed the door, got lubricant out of a cabinet, and then, in G.T.'s words, "[H]e got on the bed and knelt at my feet and pulled my pants down, and I think he just unzipped his, and then he put the lube on my vagina and he put his penis in my vagina." Afterwards, G.T. testified, Adair made her promise not to tell her grandmother, telling her, "This is our little secret." G.T. explained that this was the only time that Adair "put [his] penis in [her] vagina," but she also described other incidents when Adair had either attempted to engage or actually did engage in sexual conduct with her. G.T. eventually told her eight-year-old brother what was happening to her, but "He just kind of waved me off and didn't believe me." G.T. further testified that when she was nine years old, during another incident at the swimming pool, she told Adair to stop or else she would tell her grandmother. After that, G.T. recounted, Adair stopped, and the abuse ended.
Approximately two years after the abuse ended, G.T. made an outcry to her mother, Shelli Miller. Miller testified that during an argument with her daughter, G.T. had told her, "You've never been raped by your grandfather." Miller asked G.T. to specify the grandfather to which she was referring, and G.T. told her that it was Adair, who was also Miller's father. Miller then proceeded to call her mother, Paula Adair, told Paula what G.T. had said, and then listened as Paula told Adair what Miller had told her. Miller did not know what Adair said in response but"heard him get upset." Miller then ended the call with Paula and called the Bastrop County Sheriff's Department, who told her to have G.T. write a statement describing the abuse. Miller asked G.T. to do so, and G.T. complied. The handwritten statement, which was admitted into evidence, contained the following:
While waiting for the police to arrive, Miller called Paula again and had a second conversation with her. Paula told Miller to ask G.T. questions about what had happened, and Miller proceeded to do so. Miller asked G.T. if it was "a full blown rape," to which G.T. responded, "Yes, it was a full blown rape." When this response was conveyed to Paula, Miller could hear Adair reply, in the background, "I never full blown raped that child." Shortly thereafter, Miller told Paula that she was "going to press charges" against Adair, and the conversation ended.
The case was investigated by Detective Joel Wade of the Bastrop County Sheriff's Department. Wade arranged for G.T. to be interviewed at the Children's Advocacy Center, and he observed the interview. Wade also interviewed Miller, obtained information from her regarding G.T.'s outcry, and then arranged for a sexual-assault examination to be performed on G.T. After that, Wade arranged a non-custodial interview with Adair, which we discuss in more detail as it becomes relevant to Adair's first and fourth issues on appeal, and an interview with Paula.
The interview of G.T. at the Children's Advocacy Center was conducted by forensic interviewer Mindy Graber. Graber testified that G.T. described the abuse to her (again using the word "rape" to describe what had happened), identified on a diagram the body parts that were involved, identified "Tom Adair" as the perpetrator, and indicated that the abuse had started when G.T. was five and continued until she was nine. G.T. also described Adair's body position duringthe rape as "lying on top of her" and further specified that Adair had taken off his clothes and her clothes. G.T. added that "sometimes it hurt when he did it and sometimes it didn't hurt, and that it burned when she peed but usually a couple of hours after that it would stop."
The physical exam of G.T. was performed by Kassy Havel, a sexual assault nurse examiner. Havel testified that G.T. described the alleged abuse to her in detail, including identifying Adair as the perpetrator, the manner in which he had abused her, and the time period during which the abuse had occurred. During the exam, Havel observed no trauma to G.T.'s genitals. Dr. Beth Nauert, a pediatrician and expert in the area of child sexual abuse, reviewed Havel's report. Dr. Nauert testified that there was nothing in Havel's report that she found to be unusual and that she agreed with Havel's findings. Nauert further testified that when a physical examination is not performed until two years after penetration has occurred, "most likely . . . the examination of the child is going to be normal," with no signs of injury or trauma to the child's sexual organ.
The State also called Dr. William Carter, a psychologist in private practice with expertise in the area of child sexual abuse, whose testimony we discuss in more detail as it becomes relevant to Adair's third issue on appeal. During his testimony, Carter answered a series of hypothetical questions concerning the psychological and behavioral patterns often observed in the victims and perpetrators of child sexual abuse. The hypothetical questions closely mirrored the allegations in this case.
The defense called two witnesses. Patricia Crane, a sexual assault nurse examiner, testified that she had reviewed Havel's report and concluded that there was "no physical evidence of sexual assault." The other witness, J.S., a former childhood friend of G.T., testified without elaboration that G.T. "was a liar."
The jury found Adair guilty as charged and assessed punishment as noted above. The district court sentenced Adair in accordance with the jury's verdict. Adair subsequently filed a motion for new trial in which he alleged, among other grounds, that the jury verdict had not been unanimous. Following a hearing, the district court denied the motion for new trial. This appeal followed.
ANALYSIS
Jury unanimity
We first address Adair's second issue, in which he asserts that the jury verdict was not unanimous. Specifically, Adair claims that the district court abused its discretion in not individually polling the jurors and in not granting his motion for new trial when one of the jurors—after the guilty verdict had been entered and the jury had been released for the weekend prior to the punishment hearing—informed the district court that she did not agree with the verdict.
After the jury had concluded deliberating on Adair's guilt or innocence, the record reflects that the following occurred:
At that time, Adair did not request that the individual jurors be polled or otherwise object to the district court's procedure in confirming the unanimity of the jury's verdict. The district court then recessed the jurors for the weekend and announced that they would return on Monday morning for the punishment hearing. After the jurors were recessed, the district court announced that "this will be entered," apparently referring to the verdict.
The record further reflects that, approximately five minutes after the jury had been released for the weekend,...
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