Deere v. State, 06-19-00097-CR

CourtCourt of Appeals of Texas
PartiesISRAEL BRICE DEERE, Appellant v. THE STATE OF TEXAS, Appellee
Docket NumberNo. 06-19-00097-CR,06-19-00097-CR
Decision Date27 November 2019

On Appeal from the 6th District Court Lamar County, Texas

Trial Court No. 27881

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

A Lamar County jury convicted Israel Brice Deere of indecency with a child, A.H., by sexual contact and sentenced him to twenty years' imprisonment. See TEX. PENAL CODE ANN. § 21.11. On appeal, Deere argues that the evidence is legally insufficient to support his conviction and that the trial court erred by reading the transcript of witness testimony in response to a jury note that did not adequately specify the disagreement about the testimony, by admitting hearsay, and by creating a false impression that Deere was charged with an additional offense.1

We affirm the judgment of the trial court because (1) legally sufficient evidence supports Deere's conviction, (2) the trial court did not abuse its discretion in concluding there was jury disagreement, (3) Deere was unharmed by admission of hearsay, and (4) Deere's last point of error is unsupported by the record and unpreserved.

(1) Legally Sufficient Evidence Supports Deere's Conviction

Deere argues that the evidence is legally insufficient to support the jury's verdict of guilt. We disagree.

In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). We examinelegal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

Here, the State alleged that Deere, with the intent to arouse or gratify his sexual desire, engaged in sexual contact with A.H., a child younger than seventeen, by touching her female sexual organ with his hand. The term "sexual contact" means "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if committed with the intent to arouse or gratify the sexual desire of any person. TEX. PENAL CODE ANN. § 21.11(c)(1). On appeal, Deere questions only whether the evidence was legally sufficient to show that he "actually made physical contact with A.H."

At trial, A.H. testified that Deere came into her bedroom at night and "tried to put [his hand] on [her] pull-up." When asked if he "actually" placed his hand inside of her pull-up, A.H.said, "He kept trying and trying and then I kept turning over and then he did it." The State then elicited the following:

Q. Okay. Do you remember telling the lady at the big white house that he kind of did touch it the first time and that's why you scooted over?
A. Yes, ma'am.
Q. What did he kind of touch it with, what was that?
A. His hand.
Q. Okay. What part on you?
A. Where you pee.
. . . .
Q. And how did it make you feel when he did that?
A. I was scared . . . and I didn't know what he was trying to do.
. . . .
Q. Did you feel his fingers—his hand on you where you pee?
A. Sort of.

During cross-examination, when Deere asked, "You said he tried. Did he actually touch you where you pee," A.H. responded, "The first time. Then I turned over and he kept trying and trying until he just stopped." A.H. clarified that Deere's fingers were in her pull-up.

After A.H. reported the incident to her mother, she was examined by Kim Basinger, a sexual assault nurse examiner (SANE). Basinger testified that A.H. said, "Deere touch[ed] whereI pee. I was uncomfortable. I turned over and he tried to do it again, touch me where I pee."2 Chris Bean, a detective with the Paris Police Department, interviewed Deere about A.H.'s allegation. Bean testified, and the recording of Deere's interview admitted into evidence showed, that Deere admitted that he was lying with A.H. on her bed and his hand touched her genital area on top of her clothing. According to Bean, Deere said he was sleepy because he had taken Xanax and "didn't quite remember what had happened." Yet, Deere admitted on the recording that he realized his hand was on A.H.'s genital area and knew it was not supposed to be there.

"The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child." Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd). Here, testimony from A.H. and the SANE showed that Deere placed his fingers in A.H.'s pull-up and touched her "where [she] pee[d]" "[t]he first time." In addition, Bean testified, and Deere's recorded interview confirmed, that Deere touched A.H.'s genital area outside her clothing.3 Viewing the evidence in the light most favorable to the jury's verdict, we conclude the evidence is legally sufficient to support the finding that Deere touched A.H.'s female sexual organ with his hand. Accordingly, we overrule this point of error.

(2) The Trial Court Did Not Abuse Its Discretion in Concluding There Was Jury Disagreement

In the second count of companion cause numbered 06-19-00098-CR, Deere was charged with "touching the female organ of [A.S.]." Deere argues that the trial court erred in concludingthere was disagreement among the jury about A.S.'s testimony regarding the touching. As a result of its finding, the trial court read portions of A.S.'s testimony under Article 36.28 of the Texas Code of Criminal Procedure:

In the trial of a criminal case in a court of record, if the jury disagrees as to the statement of any witness they may, on applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other.

TEX. CODE CRIM. PROC. ANN. art. 36.28. "This statute seeks to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have." Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005).

"A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28." Id. "Instead, the request must reflect that the jurors disagree about a specified part of testimony." Id. "The trial judge's conclusion as to whether there is a factual dispute between the jurors is reviewed for an abuse of discretion." Id. "A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree." Id.

During deliberation, the jury sent a note requesting to see the transcript of A.S.'s testimony. Without objection, the court responded, "As instructed in . . . the charge you must identify a particular dispute regarding testimony. Once the testimony is located you will be brought into court where the testimony will be read back to you." The jury's second note stated, "We are not clear on the details involving the incident involving [A.S.]." Deere and the State agreed to the following response from the trial court: "The reference to, quote, unquote, details is not specific enough for the Court to identify a particular portion of testimony to read back to you. It isnecessary that you specify which particular part of the witness' testimony is actually in dispute." The jury's third note read, "The jury would like to know from [A.S.]'s testimony, how the Defendant allegedly touched her." After the trial court proposed the portions of A.S.'s testimony it planned to read to the jury in response to the note, Deere objected on the ground that he did not believe the jury had "identified a dispute in the testimony specifically enough." The trial court responded, "[T]here's a dispute as to how he allegedly touched her."

When read in context with the first two jury notes, we conclude that the trial court did not abuse its discretion in finding that jury disagreement under Article 36.28 justified re-reading the portion of A.S.'s testimony specifying how Deere touched her. After the trial court instructed the jury that it had to identify a particular dispute about the testimony, the jury responded by indicating confusion about the details of the incident between A.S. and Deere. In response to the trial court's instruction that it had to specify which part of A.S.'s testimony was disputed, the jury revealed the dispute was about "how the Defendant allegedly touched her." Because the trial court's conclusion that there was jury disagreement was not so clearly wrong as to lie outside the zone of reasonable disagreement, we overrule this point of error.

(3) Deere Was Unharmed by the Admission of Hearsay

Deere objected to the admission of a SANE report on the ground that it contained hearsay statements from the child victim. The trial court concluded that the statements were admissiblebecause they...

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