Favorite v. State, NO. 09-16-00162-CR

CourtCourt of Appeals of Texas
Writing for the CourtLEANNE JOHNSON Justice
Decision Date21 June 2017
Docket NumberNO. 09-16-00162-CR


NO. 09-16-00162-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on February 1, 2017
June 21, 2017

On Appeal from the Criminal District Court Jefferson County, Texas
Trial Cause No. 15-22506


A jury found Matthew James Favorite (Favorite or Appellant) guilty of continuous sexual abuse of a child and assessed his punishment at thirty-seven years' imprisonment. See Tex. Penal Code Ann. § 21.02 (West Supp. 2016). In eleven issues, Favorite challenges his conviction. We affirm the judgment as modified.

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On June 3, 2015, a grand jury indicted Favorite for the offense of continuous sexual abuse of a child. The indictment1 alleged, in relevant part, that:

. . . Matthew James Favorite, hereafter styled the Defendant, on or about the 1st day of September, [2014], and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, and continuing through on or about November 1, 2014, did then and there intentionally and knowingly during a period that was more than 30 days in duration, commit more than 2 acts of sexual abuse, namely, Indecency with a Child, by touching the genitals and Aggravated Sexual Assault of a Child by Penetrating the Female Sexual Organ and Aggravated Sexual Assault of a Child by Penetrating the Anus, against [D.W.], hereafter styled the Complainant, a child younger than fourteen years of age and at the time, the defendant was older than seventeen years of age, against the peace and dignity of the State.

On January 19, 2016, a jury was selected and sworn. Both the State and the defense presented their cases on January 21, after which the jury commenced its deliberations. On January 21 and 22, the jury sent three notes to the court indicating that the jurors had been unable to come to a unanimous verdict, after which the court responded with the following instructions:

Your foreman has advised the Court in writing that you are apparently unable to reach a unanimous verdict.

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If this jury after a reasonable length of time finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury.

The indictment will still be pending and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be impaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by the jury will be the same as the questions confronting you and there is no reason to hope that the next jury will find these questions any easier to decide than you have found them. Do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

With these additional instructions you are instructed to continue deliberations in an effort to arrive at a verdict which is acceptable to all members of the jury, if you can do so without doing violence to your conscience.

The jury sent another note on January 22 that read: "In order for us to reach a unan[i]mous decision, someone would have to do violence to their conscience. At this point, nobody is willing to change their decision for any reason." The court discussed the matter with the attorneys as follows:

THE COURT: We are going to go on the record in 15-22506, Matthew James Favorite, which is present with his attorney and the State's attorneys. We have received a series of messages from the jury that it is deadlocked apparently 11 to 1 for guilt. And Article 37.07 of the Texas Code of Criminal Procedure plainly provides under Section 2 if the jury fails to agree on the issue of guilt or innocence, the judge shall declare a mistrial and discharge the jury and jeopardy does not attach in the case, which means the case would be reset for another trial.
Any objection to us proceeding under the law in that regard at this time?

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[State's attorney]: No, Your Honor.

THE COURT: And the defense?

[Defense attorney]: No, Your Honor.

The jury foreperson then confirmed on the record to the court that the jury was deadlocked and that further deliberations would be fruitless, and the following exchange occurred:

THE COURT: Anybody object to a mistrial being granted at this time?

[State's attorney]: Not from the State, Judge.

THE COURT: Defense?

[Defense attorney]: No, Your Honor.

The court declared a mistrial and reset the case. A second trial commenced on April 25, 2016, Favorite pleaded "[n]ot guilty." The jury at the second trial found Favorite "guilty" of continuous sexual abuse of a child and assessed his punishment at thirty-seven years' imprisonment. See Tex. Penal Code Ann. § 21.02 (West Supp. 2016). Favorite timely appealed his conviction.

Summary of Testimony at Trial

Testimony of D.W.

D.W. testified at trial that she was born in September of 2005 and that she lives with her mother and her two younger brothers. D.W. explained that her mother

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was not married at the time of trial, but her mother and Favorite had been married and that Favorite had lived with them. According to D.W., Favorite usually slept on the couch and her mother slept in her own room.

The State's attorney asked D.W. if Favorite started doing something that made her uncomfortable, and D.W. responded "[h]e started touching me." D.W. explained that, shortly after her ninth birthday, Favorite put his hand on the outside of her "hoo-ha[]" when she was asleep. D.W. agreed that her "hoo-ha" was "right between your legs in the front where you go tee-tee[.]" D.W. testified that, when she woke up, her pants were down and Favorite's hand was on her. According to D.W., Favorite pulled her pants up and covered her up, but she thought something bad had happened and, she felt "weird." D.W. explained that she did not tell anyone what happened because she thought she would get in trouble.

D.W. testified that this happened again the next month and "he did it almost every -- the first weekend of every month." She explained that she woke up with her clothes off and Favorite was "scratching [her] hoo-ha[]" and "moving his finger back and forth . . . [on] [t]he inside and outside." D.W. explained that it felt "weird[]" and that it hurt a little bit. According to D.W., she initially pretended she was asleep, but then she acted as though she had woken up, and when she asked Favorite what he was doing, he told her he was checking on her and seeing what the neighbors were

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doing. D.W. explained that she did not tell anyone what happened because she did not want to get in trouble.

D.W. testified that this happened again the next month, she woke up with her pants down and Favorite was behind her. D.W. explained that Favorite was scratching her "hiney[]," that it felt "weird[,]" and it hurt. According to D.W., when Favorite stopped, he pulled up her pants and told her he was seeing what the neighbors were doing. D.W. explained that around the time of this incident, her mother and Favorite were fighting and Favorite "was getting kicked out of the house a little bit."

D.W. identified State's Exhibit 3 as a picture of scratchings on the wall of her room. D.W. explained that she scratched her wall because she was "afraid of him coming back and doing it again." According to D.W., her mother asked her why she was fighting with her brothers and D.W. responded that it was "because of [Favorite]" and she explained that Favorite had "touched [her] 'hoo-ha.'" D.W. explained that she felt it was okay to tell her mother because Favorite was gone then.

Testimony of Detective Turner

Matt Turner (Detective Turner or Turner), a detective with the Nederland Police Department, testified that he got a referral from CPS on or about February 9, 2015 concerning a potential sexual abuse of a child. Detective Turner explained that

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D.W. was the complaining witness and that Turner had a forensic interview with D.W.'s mother, D.F. Turner explained there was no physical evidence to collect in this case, and that sometimes after several months have passed since an incident, there is no physical evidence. Detective Turner testified that he made arrangements for a forensic examination and forensic interview with D.W., and that he sat through the interview with D.W. According to Turner, he also spoke with Favorite, but Favorite did not give him an account of what had happened with D.W.

Testimony of D.F.

D.F., Favorite's wife and D.W.'s mother, testified that in February 2015, she was concerned when she observed Favorite "standing in [her] daughter's room with a partial erection, his pants down and toilet paper in his hand." D.F. explained that, when she saw Favorite in her room, she thought he was masturbating. D.F. explained that she asked Favorite to step out of the room and asked him to explain what he was doing:

I asked him to step out of the room. He walked out in the hallway. I asked what he was doing. He said he was checking on a noise. I asked why his pants were down. He said they slipped. I said why do you have an erection? He said he didn't. I grabbed it. He did have an erection. He claimed that his pants slipped as he was walking and that further rubbed against him which caused the erection.

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D.F. also testified that Favorite told her he picked the toilet paper up off the floor, but that the toilet paper was folded and "completely clean." D.F. testified that Favorite's explanation did not make sense to her.

D.F. testified that D.W. made her outcry to her a few days later. D.F. explained that D.W. was arguing with her younger brothers, and D.F. asked D.W. why she was being mean. According to D.F., D.W. responded that it was because she was mad at Favorite and that Favorite had touched her "hoo-ha[,]" which D.F. explained referred to "[a] girl's private parts, a vagina." D.F. testified that D.W. also told her that...

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