Clay v. State

• Court: Texas Court of Appeals
• Writing for the Court: April L. Farris Justice
• Decision Date: 23 March 2021
• Docket Number: NO. 01-19-00278-CR,01-19-00278-CR
• Citation: Clay v. State, NO. 01-19-00278-CR (Tex. App. Mar 23, 2021)
• Parties: JOHNNIFER CLAY, Appellant v. THE STATE OF TEXAS, Appellee

JOHNNIFER CLAY, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-19-00278-CR

Court of Appeals For The First District of Texas

March 23, 2021

On Appeal from the Criminal District Court No. 2 Tarrant County, Texas

Trial Court Case No. 1443547D

MEMORANDUM OPINION

A Tarrant County jury convicted appellant Johnnifer Clay of the first-degree felony of continuous sexual abuse of a young child, and the trial court sentenced him to thirty-five years' confinement.¹ See TEX. PENAL CODE § 21.02(b), (h). In his first two issues, Clay argues that the trial court abused its discretion in admitting the State's evidence of an extraneous offense, namely the testimony of the complainant and a witness that Clay had also sexually abused the witness. In his third issue, Clay argues that Penal Code section 21.02 is facially unconstitutional because it does not require a unanimous jury verdict on each underlying act of sexual abuse in an indictment charging the offense of continuous sexual abuse of a young child.

We affirm.

Background

On February 3, 2016, a criminal complaint was filed in Tarrant County against Clay alleging continuous sexual abuse of his daughter, Anna, who was under the age of fourteen years at the time of the sexual abuse.² Clay was indicted on four counts. Count one alleged that Clay committed two or more acts of aggravated sexual abuseagainst Anna from February 2008 until February 2014, when Anna was under the age of fourteen. Counts two through four alleged lesser-included sexual offenses.³

The State filed a notice of intent to offer evidence of extraneous offenses and conduct, including "the offense of Aggravated Sexual Assault of a Child against [Nina]," who was Anna's friend. See TEX. CODE CRIM. PROC. art. 38.37, § 3. The notice also listed fourteen other extraneous offenses it intended to introduce. Clay filed a motion in limine requesting an order prohibiting any mention of extraneous offenses prior to a hearing. The record on appeal does not indicate that the court ruled on Clay's motion in limine.

A. Clay's Objection to Anna's Testimony

Trial began on November 13, 2018. After the jury was seated and sworn, the State read the indictment and Clay pleaded not guilty to each count. Before the jury returned to the courtroom following a recess, the State notified the court that it intended to introduce evidence of Clay's extraneous offenses or acts under Code of Criminal Procedure article 38.37. Specifically, the State "expect[ed] to elicittestimony from the victim in this case, [Anna]," regarding Clay's "sexual abuse of a second child named [Nina]."

The trial court held a hearing outside the presence of the jury limited in scope to Anna's testimony about the sexual abuse of Nina. See id. § 2-a. Anna testified at the hearing and identified Clay in the courtroom as her father. She further testified that she lived with him in an apartment at the time of the sexual abuse at issue. Nina would stay at Anna's apartment from time to time when they were fourteen or fifteen years old. Nina and her family once lived with Anna's family for three or four weeks during this time period. Anna recounted that she had seen Clay having sex with Nina in a bedroom of the apartment.

After both parties examined Anna on voir dire, defense counsel made a Texas Rule of Evidence 403 objection to Anna's testimony about Clay's sexual abuse of Nina.⁴ Defense counsel argued that the indictment in the case initially included allegations that Clay had sexually abused Nina, but that the State had amended the indictment to dismiss those counts and had indicted Clay for sexually abusing Nina in a separate case. Defense counsel argued that the evidence was "highly prejudicial" and "highly inflammatory," such that the prejudicial effect "clearly" outweighed itsprobative value. See TEX. R. EVID. 403. The trial court overruled the objection, concluding that the evidence "is probative and outweighs the prejudicial value[.]"

Afterwards, during the defense opening statement, defense counsel explained that the jury would "hear from different witnesses that state specifically that [Anna's] reputation in the community for telling the truth is bad," including a CPS worker and multiple family members, which "goes to her character for being a truthful person." Defense counsel stated there was "no evidence at all . . . as far as any physical examination" that Clay "ever touched his daughter [Anna] that he cared a great deal about. He wouldn't abuse her. He loved her."

Anna testified that Clay first sexually abused her at her aunt's house when Anna was five years old. She went home to her grandmother's house, where Anna lived at the time with her mother, but Anna did not tell her mom about her father's abuse. Anna did not see Clay much after that incident until her grandmother died when Anna was about thirteen years old. Left without a place to live, Anna and her mother moved in with Clay at his Fort Worth apartment. Anna described her discomfort at moving in with her father. A few days after moving in, Clay began sexually abusing Anna again. At first, Clay touched her inappropriately, threatening that he would beat her if she told anyone. The family moved to another apartment, and Clay began having sexual intercourse with Anna when she was fourteen orfifteen years of age. Anna described several of the incidents in detail, stating that she had sexual intercourse with Clay nearly "every day" and "every night."

Anna also testified to Clay's sexual assault of Nina. Anna testified that Clay forced Anna and Nina to have sex with each other in front of him. Anna further testified that Clay had sex with Nina in front of Anna.

B. Clay's Objection to Nina's Testimony

At the end of the second day of trial, the State notified the court during a bench conference that it intended to call Nina as its final witness and requested a hearing outside the presence of the jury. See TEX. CODE CRIM. PROC. art. 38.37, § 2-a. The court held a hearing outside the jury's presence the following morning. The State announced its intention to offer Nina's testimony under article 38.37, section two, regarding similar evidence that was offered earlier.

At the hearing, Nina testified that when she was twelve or thirteen years old, she would stay at Anna's apartment. Clay would "constantly" sexually abuse her and Anna. Clay tried to have sex with Nina on one occasion, he inappropriately touched Anna, and he would make Anna and Nina perform sexual acts together. Nina further testified that Clay was physically abusive to Anna, and that Clay "would pay [her and Anna] . . . if we did it."

After cross examining Nina, defense counsel objected to Nina's testimony under Rule 403 on the grounds that it was inflammatory and that its prejudice toClay outweighed its probative value. The court overruled the objection, finding that the testimony was "more probative than it is prejudicial." The trial court also stated that it had "determined that the evidence is likely [to] be admitted at trial [and] will be adequate to support a finding by the jury that [Clay] committed a separate offense beyond a reasonable doubt."

Before the jury, Nina identified Clay as Anna's father. Nina testified that she had been friends with Anna in school. When Anna was thirteen or fourteen years old, Nina and her family moved in with Anna's family for a few weeks. Clay would come into Anna's bedroom at night, where Anna and Nina slept, and would sexually abuse Anna. Clay eventually began waking Nina up and inappropriately touching her as well, and she testified that it happened "very often"—all but two days per week. Clay attempted to have sex with Nina, and he made Nina and Anna perform sexual acts on each other.

C. Conviction and Sentencing

After both parties rested, the trial court held a conference on the jury charge outside the jury's presence. Both parties confirmed that they had no objection to the charge. The court read the charge to the jury, and the jury ultimately returned a unanimous verdict of guilty on count one for continuous sexual abuse of a child under the age of fourteen. Because the jury found Clay guilty on count one, it did not return a verdict on the lesser-included offenses in counts two through four.

At the end of the sentencing phase of trial, the court assessed Clay's punishment at thirty-five years' confinement. Clay filed a combined motion for new trial and motion in arrest of judgment, asking the court to set aside the judgment of conviction and to order a new trial. See TEX. R. APP. P. 21, 22. The trial court did not rule on the motion, and it was overruled by operation of law. See TEX. R. APP. P. 21.8 (a), (c), 22.4. This appeal followed.

Admissibility of Extraneous Offense Evidence Under Rule 403

In his first two issues, Clay argues that the trial court abused its discretion in admitting extraneous offense evidence that was unduly prejudicial under Rule 403. See TEX. R. EVID. 403. Clay contends that he was only charged in the underlying indictment with sexual abuse of Anna; he was not charged with sexual abuse of Nina in this case. Consequently, he argues that Anna's and Nina's testimony about Clay's alleged sexual abuse of Nina is evidence of an extraneous offense that unduly prejudiced his defense.⁵

A. Standard of Review

We review a trial court's ruling on the admissibility of evidence of extraneous offenses for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex.Crim. App. 2013) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)); Alvarez v. State, 491 S.W.3d 362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (citing Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007)). We will affirm a trial court's evidentiary ruling that is within the zone of reasonable disagreement and correct under any theory of law. Pawlak, 420 S.W.3d at 810; Alvarez, 491 S.W.3d at 370.

B. Governing Law

Generally, "an accused may not be tried for some...