Bohanna v. State

• Court: Texas Court of Appeals
• Writing for the Court: Jerry Zimmerer Justice
• Decision Date: 13 May 2021
• Docket Number: NO. 14-19-00936-CR,14-19-00936-CR
• Citation: Bohanna v. State, NO. 14-19-00936-CR (Tex. App. May 13, 2021)
• Parties: TERRANCE A. BOHANNA, Appellant v. THE STATE OF TEXAS, Appellee

TERRANCE A. BOHANNA, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-19-00936-CR

State of Texas in the Fourteenth Court of Appeals

May 13, 2021

On Appeal from the 184th District Court Harris County, Texas

Trial Court Cause No. 1558383

MEMORANDUM OPINION

Appellant Terrance C. Bohanna appeals his conviction for aggravated sexual assault. Tex. Penal Code Ann. § 22.021. All of appellant's issues in this appeal challenge the trial court's decisions admitting extraneous offense evidence during the punishment phase of his trial. We affirm.

BACKGROUND¹

Appellant was charged with aggravated sexual assault of the complainant, an adult female. During the guilt-innocence phase of appellant's sexual assault trial, among other witnesses, the State presented extraneous sexual assault testimony from "Carrie." At the conclusion of the evidence from the guilt-innocence phase of his trial, the jury found appellant guilty of aggravated sexual assault of the complainant. Appellant does not raise any issues on appeal challenging his conviction. The case then proceeded to the punishment phase of the trial where the State sought to admit evidence of two additional extraneous sexual assaults allegedly committed by appellant. The two alleged extraneous offense complainants were "Amy" and "Bianca."

The State did not call either Amy or Bianca to testify. The State planned to call two of the police officers who initially responded to the initial sexual assault reports, two emergency room nurses who participated in the sexual assault examinations of Amy and Bianca at Memorial Hermann Southwest Hospital, and a DNA forensic analyst from the Houston Forensic Science Center, to testify. The State also sought to admit into evidence the sexual assault nurse examiner ("SANE") reports prepared by the emergency room nurses as well as the reports prepared by the DNA analyst.

Appellant filed written objections to the State's use of this proffered evidence. Appellant initially objected that admitting the reports and the testimony of the responding police officers would violate his confrontation rights under the United States and Texas constitutions. Appellant also objected to the admission of the nurses' SANE reports arguing they did not meet the requirements of thehearsay exception for medical diagnosis or treatment found in Rule 803(4) of the Texas Rules of Evidence. Next, appellant objected to the admission of the State's proffered evidence asserting that the State's evidence did not meet the requirement that the State prove the extraneous offenses occurred by the beyond a reasonable doubt standard required by the Code of Criminal Procedure. In appellant's view, the State's proffered evidence was insufficient because the State did not intend to have the alleged victims testify that the sexual contact was not consensual. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1). Appellant additionally argued that the trial court should exclude the evidence because the prejudicial effect of admission substantially outweighed its probative value thereby violating Rule 403 of the Texas Rules of Evidence. Finally, appellant asserted that the admission of the evidence would violate his rights to due process and a fair trial under both the United States and Texas constitutions.²

The trial court conducted a gatekeeper hearing on the admissibility of the State's extraneous offense evidence outside the presence of the jury. At the beginning of the hearing, the trial court noted that it had previously overruled appellant's confrontation objection during proceedings off the record. At the conclusion of the gatekeeper hearing, the trial court ruled that it would, with the exception of requiring some redactions in one of the SANE reports, admit the challenged evidence.

During the punishment phase of appellant's trial, the State called five witnesses to establish appellant's extraneous sexual assaults of Amy and Bianca. They called two police officers, Israel Gonzalez and Nhat Huynh. The State also called two emergency room nurses, Yasmine Ricks and Lindsey Johnson. Finally,the State called Jessica Powers, the DNA forensic analyst who analyzed samples taken from appellant and both Amy and Bianca.

The officers established Amy and Bianca's statements to them occurred as they arrived at each scene and while they were assessing the situation. Officer Gonzalez responded to a call for service at 3:30 a.m. or 4:00 a.m. He met Amy at the location and obtained her identification. He then had "a conversation with her about what [he was] being called out for," and after taking her report, he directed Amy to a hospital "to get a rape kit."

Officer Huynh responded to a call at 5:00 a.m. Huynh found Bianca "a bit shaken up" and "crying" with a cut to her left thumb, and dried blood on her arms and leg. After talking with Bianca, Huynh called the Houston Fire Department to assist. Huynh could not recall whether Bianca was transported by the Houston Fire Department.

The two emergency room nurses collected Amy and Bianca's statements as part of their medical forensic exams. Ricks assisted Amy, while Johnson helped Bianca. Both nurses testified that they collected the histories verbatim as Amy or Bianca talked about what had happened. Ricks testified that the medical history helps in the treatment of the patient. Johnson stated that the history helped her to look for injuries during the hospital examination. Ricks denied working for law enforcement and said that her duty was to care for her patient. Both nurses testified the reports were created as part of their duties as emergency room nurses.

The State sought to admit Amy's report. Appellant objected and the trial court required redactions in the report. Once again appellant objected, but the trial court overruled the objection. Amy's redacted SANE history reads in pertinent part:

[Patient] states the man pulled a knife out on her and demanded she get on her knees. [Patient] states the man forced her to have oral. Male forced her in the backseat to perform oral. The [patient] states she was then told to get on her back. [Patient] pleaded with the male to not have sex without condom. The male placed knife at [patient's] neck and proceeded to have intercourse. Penis inserted [patient] [sic] vagina with no condom. Penis inserted [patient] [sic] mouth when performing oral.

Bianca's SANE history reads similarly. It provides in pertinent part:

Before she knew it he pulled a knife and put it to her throat. The knife was long with ridges[.] Knife had a short han[dle.] [T]he patient states she tried to grab her phone and the assailant cut himself and got blood on her arm. Patient states the man told her to get on the floor. At the time she was on the floor she was on her knee's [sic]. The man told her to "suck his dick" she told him "no" he was grabbing her head she was fighting back [sic]. He forced her to lay back by putting the knife to her neck. He pulled her underwear down with his hands down to her knees. Patient says they were lying on concrete. "He pulled his underwear down I'm pretty sure." He did not put on a condom. Did not use lubrication. Patient says assailant spread her legs had the knife at her throat used other hand to hold her down. The encounter lasted about 5-10 mins. "I knew I had no way of getting him off of me because he was so heavy and it was really dark so I couldn[']t see anything. After he finished he told her to lay there and not to move. He ejaculated on her private.

Each nurse also sponsored their patient's SANE evidence kit.

Powers, the forensic DNA analyst, testified that her DNA analyses of the samples collected from Amy, Bianca, and appellant could not exclude appellant as the male contributor found in some of each victim's samples. Regarding Amy's DNA evidence, Powers concluded that appellant could not be excluded as a contributor to one of Amy's samples by a probability of "1 in 1.5 sextillion for Caucasians; 1 in 8.4 quintillion for African Americans; 1 in 280 quintillion for Hispanics; and 1 in 2.4 sextillion for Asians." Appellant was excluded as a contributor from the other samples.

As to Bianca's samples, Powers testified that she did not do the initial DNA analysis. Powers went on to testify that she reviewed the analysis, checked all paperwork and conclusions, and verified the data. Powers then did an independent analysis and prepared her own report from testing the data. The trial court overruled appellant's confrontation objection. Powers concluded that several of Bianca's samples indicated a male DNA profile. Powers then opined that after comparing appellant's known DNA profile to two of Bianca's samples, appellant could not be excluded as a contributor by a probability of "1 in 1.5 sextillion for Caucasians; 1 in 8.4 quintillion for African Americans; 1 in 280 quintillion for Hispanics; and 1 in 2.4 sextillion for Asians." With respect to numerous other samples, appellant could not be excluded by similar probabilities.

The State recalled the complainant to testify about the harm caused by the sexual assault at issue here. Finally, the State called an HPD detective, Loren Magness, to testify. Magness investigated the complainant's case and she sponsored the admission of the video of appellant's custodial statement where he denied having any sexual contact with the women despite being presented with Amy's and Bianca's DNA test results.

After appellant called five character witnesses, the parties rested. The trial court then instructed the jury, in relevant part, that it could consider the extraneous offenses only if it found the evidence showed them beyond a reasonable doubt. The jury assessed appellant's punishment at forty years in prison. The trial court sentenced appellant accordingly.

ANALYSIS

Appellant raises four issues on appeal all challenging the trial court's decision to admit the extraneous offense evidence summarized above. We address them in order.

I. The trial court did not violate app...