Doss v. State
| Decision Date | 26 August 2021 |
| Docket Number | 13-20-00090-CR,13-20-00091-CR,13-20-00089-CR |
| Parties | NICHOLAS WAYNE DOSS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. TEX. R. APP. P. 47.2 (b).
On appeal from the 197th District Court of Willacy County Texas.
Before Chief Justice Contreras and Justices Benavides and Silva
A jury found appellant Nicholas Wayne Doss guilty of two counts of sexual assault, a second-degree felony[1]; one count of producing or directing a sexual performance by a child under eighteen years of age, a third-degree felony[2]; and one count of enticing a child with intent to commit a felony, a third-degree felony.[3] See TEX. PENAL CODE ANN §§ 22.011(a)(1), 25.04, 43.25(d). Appellant was sentenced to concurrent prison terms of seventeen years for each sexual assault count and ten years for the other two counts. On appeal, appellant argues: (1) he had an "absolute right" to a separate trial on each indictment; (2) he was entitled to a jury instruction to "clarify the elements" of the enticing a child offense; (3) the evidence was insufficient to support a finding that he intended to interfere with the lawful custody of a child; and (4) the evidence was insufficient to support a finding that the sexual assaults were committed in Willacy County. We affirm the judgments as modified.
Appellant was charged in three separate indictments filed on March 27, 2019. The first indictment set forth two counts of sexual assault: Count I alleged that appellant caused the penetration of the mouth of A.O., a child under seventeen years of age, by his sexual organ; Count II alleged that appellant caused the penetration of A.O.'s sexual organ by his sexual organ. See id. § 22.011(a)(1)(A), (B). The second indictment alleged in two identical counts that appellant intentionally or knowingly, and with knowledge of the character and content of the material, produced or directed a photograph that included sexual conduct by A.O., a child under eighteen years of age. See id. § 43.25(d), (e). The third indictment alleged in two identical counts that appellant, with the intent to interfere with the lawful custody of A.O. and to commit sexual assault against A.O., knowingly enticed, persuaded, or took A.O. from the custody of L.A., her mother. See id. § 25.04.
A jury was selected for a trial on all the indicted offenses on October 21, 2019. The following day, the State moved for mistrial based on defense counsel's allegedly improper communication with jurors. Defense counsel agreed to the mistrial and the trial court granted it. On November 7, 2019, a pre-retrial hearing was held at which defense counsel raised an objection to "consolidating all these cases." Counsel stated that he would prefer to proceed first on the sexual assault case. He explained his belief that proceeding on all three cases would be "unduly prejudicial" because, while the enticing and sexual performance counts require proof that appellant knew the age of the victim, the sexual assault count does not require such a showing.[4] The State responded that, because the offenses "happened all at the same time" and involve the "same evidence," it would serve "judicial efficiency" to try all three cases together. The trial court denied appellant's objection to the cases being heard at the same trial. Defense counsel then asked whether the State would file a notice of consolidation "so that if there should be an appeal, that it be under one consolidated cause number rather than all three." The State did so.
Eleven days later, on the morning before the retrial was set to begin, appellant's counsel again objected to "consolidation of the offenses," noting that "the State hasn't filed a motion to consolidate"[5] and arguing that "if [appellant] gets found guilty on [the sexual assault] offense, then the other cases are just going to fall right in in [sic] domino effect." The trial court replied: The trial court then moved on to other matters, including a motion in limine filed by the State and jury selection. The trial began the following day.
At trial, Mark Jenkins, a financial crimes detective with the Huntsville Police Department, testified that he was called to assist in a traffic stop made by another officer on November 6, 2018. He was informed that one of the occupants of the stopped vehicle, Susanna Almanza, had fled the scene. He later learned that A.O., a sixteen-year-old child, was in the vehicle along with Almanza as well as "a hitchhiker who was a convicted sex offender." Jenkins said Almanza "had custody of [A.O.]" at the time and that Almanza was "hanging out of the window of the sunroof of this vehicle."
Jenkins said he obtained permission from A.O.'s mother to search A.O.'s phone. He found a "string of Snapchat messages" that were explicit and "sexual in nature" between A.O. and appellant; he took photos of the messages, and they were entered into evidence at trial. Based on the messages, Jenkins believed that appellant sent nude photos of himself to A.O. From A.O.'s phone, Jenkins was able to locate appellant's phone number and social media accounts, and he determined that appellant lived near Raymondville, so Jenkins contacted the Raymondville Police Department.
Denise Ledesma, a sex crimes detective with the Raymondville Police Department, testified that she received the report from Huntsville police, including photos of the text messages between appellant and A.O., on November 7, 2018. Also that day, A.O.'s mother, L.A., filed a report of a possible sexual assault. Ledesma interviewed A.O., during which A.O. admitted that she and appellant exchanged nude photos of each other. A.O. also told Ledesma that she met with appellant three times to have sexual intercourse, including once at appellant's residence on October 31, 2018, and another time in appellant's car on a "dirt road" north of Raymondville. Ledesma then arrested appellant and brought him to the police department. She said that, before interviewing appellant, she advised him of his privilege against self-incrimination, his right to remain silent, his right to have an attorney present, and his right to terminate the interview. According to Ledesma, appellant voluntarily signed a waiver of his rights. A video recording of the ensuing interview was entered into evidence and played for the jury at trial. During the interview, appellant admitted to sending nude photos of himself to A.O. and to having sexual intercourse with A.O. on two occasions. Ledesma said A.O. was sixteen years of age in September and October of 2018, whereas appellant was twentyeight years of age.
On cross-examination, Ledesma acknowledged that A.O. had previously given a statement to Huntsville police in which she said that "nothing happened" the first time she met appellant because "she was uncomfortable." Ledesma also conceded that, although the text messages obtained from A.O.'s phone described explicit photos, those photos were not visible in the messages. Ledesma explained that this is because Snapchat is "known for erasing its content once viewed by each receiver."
L.A. testified that A.O. is her daughter, born in January of 2002. She said she became aware of the "situation" with appellant when she found out A.O. had chlamydia. L.A. said A.O. "confided in [her] that she had been accosted" on Halloween of 2018. L.A. explained that she was friends with Almanza's mother, and she knew that A.O. was going to travel to Houston with Almanza. She also knew appellant from seeing his picture on Facebook. L.A. stated on cross-examination that she was not concerned that Almanza was "trafficking" A.O.
A.O. testified that she met appellant on Facebook and talked with him on Snapchat. She said appellant told her he was eighteen years old, and she told him she was sixteen. A.O. conceded that she sent appellant around thirty photos of her breasts and vagina; when asked why, she stated "[b]ecause he would ask." She said appellant sent her a video of him "[p]utting his hand on his penis." A.O. said she later went to appellant's residence in Harlingen, where they watched a movie and had vaginal intercourse. Another time, they drove around in appellant's car and had oral sex and vaginal intercourse while stopped on a "back road" near Raymondville. She did not have her mother's permission to leave the house to meet appellant, so she "would sneak out through the window."
A.O. acknowledged she initially told Ledesma that Almanza had picked her up to go to "the island" but that this was a lie, and instead, she was going to Houston. She explained she lied to Ledesma because she "loved" appellant and felt like she needed to protect him.
Prior to jury deliberations, the State abandoned the second enticing a child count and the second sexual performance count. The jury convicted appellant on the remaining four counts and assessed punishment as set forth above. This appeal followed.
By his first issue, appellant argues that the trial court erred by consolidating the three indictments and by denying his motion to sever.
We review a trial court's ruling on a motion to sever for an abuse of discretion. Hodge v. State, 500 S.W.3d 612 621 (Tex. App.-Austin 2016, no pet.). Under that standard, the ruling will be upheld unless "it is so clearly wrong as to lie outside the zone of reasonable...
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