Draheim v. State

• Decision Date: 24 January 1996
• Docket Number: No. 04-94-00039-CR,04-94-00039-CR
• Citation: 916 S.W.2d 593
• Parties: Robert DRAHEIM, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 593

916 S.W.2d 593

Robert DRAHEIM, Appellant, v. STATE of Texas, Appellee.

No. 04-94-00039-CR.

Court of Appeals of Texas San Antonio.

Jan. 24, 1996.

Robert Switzer, Switzer, Carroll & De Prado, San Antonio, for Appellant.

Edward F. Shaughnessy, III, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before LPEZ, GREEN and DUNCAN, JJ.

OPINION

DUNCAN, Justice.

Robert Draheim pleaded guilty to a jury and was convicted of aggravated sexual assault and indecency with a child. For the offense of aggravated sexual assault, the jury assessed ninety-nine years in the Institutional Division of the Texas Department of Criminal Justice. For the offense of indecency with a child, the jury assessed twenty years in prison. In two points of error, Draheim complains that the trial court erred in admitting and excluding certain evidence in his sentencing trial. In his third point of error, Draheim alleges fundamental error arising out of the State's repeated references to the hardships endured by the jury, the State, and the State's witnesses as a result of Draheim's exercising his right to trial by jury. We affirm.

FACTS

In June 1988, eleven year old E.S. moved in with her father, J.S. During the late summer and early fall of that year, J.S. frequently took his daughter with him to his construction job at the home of his friend, Robert Draheim. Draheim's home was a "kid's dream," complete with video games, pinball and slot machines, a pool table, and snacks. On October 10, when J.S. again took his daughter to Draheim's, Draheim invited E.S. into his bedroom, which was equipped with a waterbed, mirrors on the ceiling and walls, a video camera, and a TV monitor. After E.S. entered the bedroom, Draheim closed the door. On the bed were wrapped birthday presents for E.S., who had just turned twelve.

With a camera running, E.S. opened the presents, which contained clothes. At Draheim's invitation, E.S. modeled the clothes, changing in the adjacent bathroom. After about an hour, E.S.'s father poked his head in and said he would return for E.S. the following day. Ultimately, throughout the evening and again the next morning until about noon, Draheim repeatedly performed oral, digital, and vaginal sex with E.S. Throughout the episode, Draheim had an erection; when E.S. masturbated him, Draheim ejaculated. After approximately an hour and forty-five minutes, the videotape was full and stopped recording. Draheim also took still Polaroid photographs.

When E.S.'s father picked E.S. up the next afternoon, he insisted on watching the videotape, which Draheim permitted. During the next four months, E.S. continued to see Draheim. Throughout that time, Draheim never apologized to E.S., nor did he say he had done anything wrong. To the contrary, both Draheim and later E.S.'s father told her not to tell anyone what had happened.

In February 1989, E.S. moved back in with her mother, M.S. On the evening of her return, E.S. related to her mother what had happened. M.S. reported the matter to the police, who proceeded to investigate. In May 1989, the District Attorney's office filed charges against Draheim for aggravated sexual assault and indecency with a child. The videotape had not been found, however, and Draheim denied any involvement. But on October 2, 1989, Crime Stoppers received the videotape in a package with no return address.

Shortly before his first trial, in June 1990, Draheim began seeing a counselor, Mark Steeg. When Draheim pleaded guilty, Steeg recommended probation. Steeg's recommendation was rejected, and Draheim was sentenced to prison by the court. Dissatisfied with his sentence, Draheim filed a writ of habeas corpus.

While his writ of habeas corpus was pending, in June 1991, Draheim agreed to testify against his co-defendant, J.S., who had pleaded not guilty, in exchange for the State's agreement not to use his testimony in any subsequent retrial Draheim might win as a result of his habeas corpus proceeding. It was the prosecutor's understanding that Draheim would not agree to testify against J.S. without use immunity. In preparation for his testimony, Draheim reviewed the videotape both inside and outside the jury's presence. When viewing the videotape outside the jury's presence, during lunch, Draheim ate his entire lunch, expressing no remorse or other emotion. When viewing the videotape before the jury, however, Draheim held his head down, with his hand over his face, and peeked at the videotape through his fingers.

In July 1993, Draheim's writ of habeas corpus was granted, and he was released from prison. Upon his release, Draheim was again evaluated by Steeg. Steeg's evaluation established that Draheim was still most sexually aroused by children ages ten to thirteen; the second highest category was fourteen-year-old girls; the third highest category was male children aged four to six and seven to nine. At the request of his attorney, Draheim was also evaluated by Dr. Michael Arambula. With Draheim's permission, on October 15, 1993--approximately two weeks before trial--Arambula put Draheim on Depo-Provera to reduce his testosterone and, therefore, arousal levels. By the time of trial, Draheim exhibited insignificant levels of arousal by any category. However, neither Steeg nor Arambula could say that Draheim would not offend again or that he would stay on the Depo-Provera.

On retrial, Draheim again filed an application for probation. This time, however, Draheim pleaded guilty to, and elected sentencing by, the jury. The State showed the videotape to the jury and introduced the testimony of seven witnesses:

Patty Walsh, Douglas Stockton, Richard Garcia, and Gene Henderson--These law enforcement officers testified to Crime Stopper's receipt of the videotape, its authenticity, and their identification of Draheim and E.S.

E.S.'s mother, M.S.--M.S. testified to E.S.'s outcry to her in February 1989 and E.S.'s behavioral and emotional problems, and counseling, since Draheim's assault in October 1988 and since being notified in July 1993 that she and E.S. would need to return to San Antonio to testify in the retrial.

E.S.--E.S. testified to Draheim's assault and her behavioral and emotional problems, and counseling, since Draheim's assault in October 1988 and since being notified in July 1993 that she would need to return to San Antonio to testify in the retrial. E.S. also testified that Draheim had never apologized to her, had never told her he had done anything wrong, and had never asked her forgiveness.

Draheim also introduced the testimony of seven witnesses:

Catherine Babbitt--Ms. Babbitt, an assistant district attorney, testified to the use immunity granted to Draheim in exchange for his agreement to testify against E.S.'s father, as well as Draheim's conduct while watching the videotape.

Allyn Devey--Mr. Devey, a friend of Draheim's, testified that, while he had not watched the videotape, he believed Draheim had redeeming qualities and should be afforded a second chance.

Fred Leisering--Mr. Leisering, the Deputy Chief of the Bexar County Community Supervision and Corrections Department, testified regarding the probation process and possible probation conditions.

Mark W. Steeg--Dr. Steeg testified regarding Draheim's arousal levels, counseling process, and treatability in June 1990 and after his release from prison. Dr. Steeg recommended that Draheim be placed on probation and given a treatment package consisting of individual and group therapy and Depo-Provera.

Michael R. Arambula--Dr. Arambula testified regarding Draheim's arousal levels and Depo-Provera treatment after his release from prison. Dr. Arambula's recommendation paralleled that of Dr. Steeg.

Rebecca and Frank Ingersoll--The Ingersolls testified regarding their work in prison ministry, particularly with Draheim, and his religious conversion, which they believed to be sincere.

The jury returned a verdict rejecting probation and finding instead that Draheim should be sentenced to ninety-nine years for aggravated sexual assault and twenty years for indecency with a child. The trial court sentenced Draheim in accordance with the jury's verdict.

JURISDICTION

The State has not favored this court with a brief on the merits. Instead, the State relies solely upon its assertion that we do not have jurisdiction to consider Draheim's points of error because he waived all error--whether occurring before, at, and after the entry of his plea--by pleading guilty to the jury, rather than to the court. We disagree.

Under the Helms rule, ¹ a nonnegotiated plea of guilty waives all nonjurisdictional errors occurring before the plea is entered. Jack v. State, 871 S.W.2d 741, 743 (Tex.Crim.App.1994). Such a plea does not, however, waive error alleged to have occurred at or after the plea. Id. at 744. "[A]n accused cannot waive a defect in proceedings that [has] not yet occurred." Id. at 743 (quoting King v. State, 687 S.W.2d 762, 767 (Tex.Crim.App.1985) (Clinton, J., concurring)). Therefore, in Jack, the Court of Criminal Appeals held that, despite Jack's nonnegotiated plea of guilty, the appellate court had jurisdiction to consider the merits of Jack's complaint that the trial court erred during his punishment trial by admitting evidence of unadjudicated extraneous offenses allegedly committed seventeen years before. See Jack, 871 S.W.2d at 744. In so doing, the court expressly rejected the State's principal argument in this case. See id. at 742-43 (rejecting State's assertion that King held that "nonnegotiated plea bargain waives all nonjurisdictional defects, whether occurring prior to the entry of the plea or after"). ²

The State argues, however, that Jack has no application in this case because Jack involved a plea to the court, rather than a plea to the jury. Again, we disagree. For purposes of determining whether the defendant has waived the alleged error, the relevant distinction is between negotiated and nonnegotiated...