Duke v. State

• Decision Date: 19 September 2012
• Docket Number: No. 06–10–00209–CR.,06–10–00209–CR.
• Parties: Jesse Ray DUKE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

365 S.W.3d 722

Jesse Ray DUKE, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00209–CR.

Court of Appeals of Texas,

Texarkana.

Submitted: Feb. 15, 2012.

Decided: March 27, 2012.

Rehearing Overruled May 1, 2012.

Discretionary Review Refused Sept. 19, 2012.

Peyton Z. Peebles III, The Peebles Firm, Sean T. McAlister, Capitaine, Shellist & McAlister, LLP, Houston, for appellant.

Clint Allen, Dist. Atty., Linden, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

This classic she-said-he-said case—alleging that Jesse Ray Duke committed indecency with a child, S.S., by sexual contact—is complicated by a multi-year child-custody dispute between S.S.'s parents and varying statements and recantations by S.S. concerning the charged offense. From a guilty verdict and a sentence of sixty years' imprisonment, and after a post-judgment recantation by S.S. and a denial of Duke's motion for new trial, Duke appeals on various grounds. We affirm the judgment of the trial court because (1) no error was preserved regarding limiting cross-examination and affidavits of S.S., (2) a no-adverse-inference instruction was not required, (3) no mistrial was required, (4) no new trial was required, and (5) sufficient evidence supports Duke's conviction.

(1) No Error Was Preserved Regarding Limiting Cross–Examination and Affidavits of S.S.

During trial, the trial court limited the scope of cross-examination of S.S. and refused to admit into evidence two affidavits signed by her in SAPCR proceedings.¹ Duke argues the cross-examination and affidavits were admissible under Rule 613 of the Texas Rules of Evidence, which is an exception to Rule 608 of those rules.

Rule 608(b) forbids inquiry into specific instances of a witness' conduct for the purpose of attacking or impeaching a witness' credibility. Tex.R. Evid. 608(b). Rule 613, though, provides that a witness may be impeached by “proof of circumstances or statements showing bias or interest....” Tex.R. Evid. 613(b). The Texas Court of Criminal Appeals has held that evidence of manipulation “should be analyzed under the same rules that govern evidence of truthful or untruthful character.” ²Schutz v. State, 957 S.W.2d 52, 69 (Tex.Crim.App.1997) (social worker's testimony that the child did not exhibit the traits of manipulation admissible under Rule 608 of the Texas Rules of Evidence). The Texas Court of Criminal Appeals, however, has recognized Rule 613 is an exception to Rule 608 and permits the use of “extrinsic evidence to show bias or interest.” Billodeau v. State, 277 S.W.3d 34, 40 (Tex.Crim.App.2009) (holding child's threat to accuse different person of molestation should have been admitted in defendant's trial). The court stated, “The possible animus, motive, or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him.” Id. at 42–43.

The State argues Duke failed to preserve any Rule 613 objection. The State argues, “[D]efense counsel did not object to the court's ruling based on Rule 613 and therefore has not preserved this issue for review.” Tex.R.App. P. 33.1. In the trial court, Duke did not refer to Rule 613 or even use the word “bias,” but clearly argued to the trial court that the line of inquiry concerned S.S.'s “susceptibility.” To preserve a complaint for appellate review, the record must establish (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint and (2) that the trial court ruled adversely. Tex.R.App. P. 33.1; Pardue v. State, 252 S.W.3d 690, 698–99 (Tex.App.-Texarkana 2008, no pet.). A party's failure to employ “magic words” will not preclude error preservation if the party's complaint is sufficient to make the trial court aware of the grounds of the complaint. Pardue, 252 S.W.3d at 699. We believe the objection was sufficient to make the trial court aware of Duke's complaint.

We agree, though, that error has not been preserved for appellate review. Although Duke's objection was sufficient to make the trial court aware of his complaint and Duke introduced the affidavits for appellate review, Duke failed to make either a formal bill of exceptions or request permission to make an informal offer of proof (i.e., either in question-and-answer form or in the form of a concise statement by counsel). Because of this failure, we have no idea what S.S. would have testified to and whether S.S. would have denied making the statements in the affidavit.

To preserve a ruling excluding evidence for appellate review, the record must contain an offer of proof.³SeeTex.R. Evid. 103; Tex.R.App. P. 33.1(a); Love v. State, 861 S.W.2d 899, 901 (Tex.Crim.App.1993); Hambrick v. State, 11 S.W.3d 241, 243 (Tex.App.-Texarkana 1999, no pet.). If an offer of proof is made in the form of a concise statement, the concise statement must include a reasonably specific summary of the proposed testimony. Love, 861 S.W.2d at 901;Harty v. State, 229 S.W.3d 849, 854 (Tex.App.-Texarkana 2007, pet. ref'd).

Rule 613(a) requires the witness to be informed of the contents of the prior statement and given a chance to either admit or deny. SeeTex.R. Evid. 613(a). The affidavits complained of would have been admissible only if S.S. had denied making the statements contained in those affidavits. Without an offer of proof, we do not know what testimony the trial court excluded when it limited cross-examination; and, because of said lack of knowledge, we do not know whether the affidavits would have been admissible. We are not permitted to speculate as to what S.S.'s testimony would have been and then find error based on said speculation. No error in limiting cross-examination of S.S. and in excluding the affidavits has been preserved for appellate review.

(2) A No–Adverse–Inference Instruction Was Not Required

Duke also argues that egregious harm occurred when the trial court failed to include a no-adverse-inferences instruction in the jury charge. Although Duke did not request such a charge or object based on its omission, Duke argues that Almanza⁴ should govern our analysis, that error occurred because the trial court had a sua sponte duty to correctly instruct the jury, ⁵ and that egregious harm resulted.⁶ The State responds that such a charge is required only when affirmatively requested by the defendant.

If a no-adverse-inference instruction is timely requested, a defendant has a constitutional right to such an instruction. See Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981); Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App.1989). Here, however, Duke did not timely request such an instruction. The Texas Court of Criminal Appeals has recognized that a criminal defendant may not desire the instruction.⁷See Rogers v. State, 486 S.W.2d 786, 788 (Tex.Crim.App.1972); Hill v. State, 466 S.W.2d 791 (Tex.Crim.App.1971); Peoples v. State, 459 S.W.2d 868, 869 (Tex.Crim.App.1970).

The Texas Court of Criminal Appeals, however, has not addressed this issue since the United States Supreme Court's decision in Carter. The Austin Court of Appeals has held, relying on Carter, that a trial court has no duty to include a no-adverse-inference instruction in the absence of a request. Michaelwicz v. State, 186 S.W.3d 601, 623 (Tex.App.-Austin 2006, pet. ref'd). In Carter, the SupremeCourt emphasized the no-adverse-inference instruction must be requested. Carter, 450 U.S. at 300, 101 S.Ct. 1112. The approach of the Austin Court of Appeals is entirely consistent with this dicta.

We agree with the Austin Court of Appeals that, in the absence of a request, the failure to include a no-adverse-inference instruction is not jury charge error. Michaelwicz, 186 S.W.3d at 623. Because whether to request a no-adverse-inference instruction is a matter of strategy, a trial court does not err, in the absence of a request, by failing to give such an instruction. We do not review for egregious harm unless we first find error in the jury charge. Taylor v. State, 332 S.W.3d 483, 489 n. 12 (Tex.Crim.App.2011); Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App.1998). Because the jury charge did not contain error, our Almanza analysis is concluded. This issue is overruled.

(3) No Mistrial Was Required

At the conclusion of the punishment phase, the alternate juror, Kandis Wise, accompanied the jury into its deliberation session on punishment and remained in the jury room for approximately five minutes. Wise testified that she did not participate in any discussion while in the jury room. The jury foreperson, Tammie Nichols, testified that Wise did not participate in any discussions or in any votes while she was present in the jury room for “[j]ust a couple of minutes.” The trial court denied Duke's motion for a mistrial.⁸

Duke argues that the trial court erred in denying the motion for mistrial. Duke directs our attention to Article 36.22 of the Texas Code of Criminal Procedure, which prohibits the presence of any person “to be with the jury while it is deliberating....” Tex.Code Crim. Proc. Ann. art. 36.22 (West 2006). Duke argues the trial court's ruling “cannot be explained by any guiding rules or principles given the mandatory nature of Article 36.22.” The State responds that the error did not result in injury to the defendant and was harmless.

To say that a statute is “mandatory” is simply to say that the law prescribes the manner in which a particular action should or shall be taken. McCain v. State, 67 S.W.3d 204, 210 (Tex.Crim.App.2002). When Article 36.22 is violated, a rebuttable presumption of injury to the defendant arises. Ocon v. State, 284...