Glockzin v. State

• Decision Date: 21 February 2007
• Docket Number: No. 10-06-00026-CR.,10-06-00026-CR.
• Parties: David Wayne GLOCKZIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

220 S.W.3d 140

David Wayne GLOCKZIN, Appellant, v. The STATE of Texas, Appellee.

No. 10-06-00026-CR.

Court of Appeals of Texas, Waco.

February 21, 2007.

John A. Kuchera, Waco, for appellant.

John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

David Wayne Glockzin was convicted of aggravated sexual assault (count I) and indecency with a child (count II). The jury sentenced Glockzin to sixty years in prison with a $5,000 fine on count I and twenty years in prison with a $5,000 fine on count II. Glockzin argues that: (1) the evidence is factually insufficient; (2) the court's charge "constructively amended" the indictment; (3) "sexual contact" was improperly defined in the charge; (4) the court erred by not sua sponte including an extraneous offense instruction in the guilt-innocence charge; (5) the court's charge commented on the weight of the evidence as to count I; (6) the court's charge commented on the weight of the evidence as to count II; (7) the court erred by not sua sponte including an extraneous offense instruction in the punishment charge; and (8) trial counsel rendered ineffective assistance. We affirm.

FACTUAL BACKGROUND

Glockzin is J.M.'s father.¹ J.M. and her niece, H.M., stayed with Glockzin on the night of the offense. That night, Glockzin followed J.M. to the apartment's only bedroom, got in bed with her, pulled down her shorts and underwear, and rubbed and penetrated her vaginal area with his finger.² Glockzin also pulled down his pants, pulled up her shirt, "scooted up," forced her chest against his penis, and rubbed.³ Glockzin then left the bedroom. J.M. testified that H.M. was in the living room during this time. She told Detective Lonnie Underberg that H.M. was in the bedroom, but ran out when Glockzin entered and returned after he left. J.M. testified that Glockzin was drinking; she smelled alcohol and his eyes were red. She concealed these events until, several days later, her sister, R.M., discovered J.M.'s bloody underwear hidden in the closet. She and M.G., J.M.'s mother, confronted J.M. who revealed the offense.

FACTUAL SUFFICIENCY

In his first issue, Glockzin challenges the factual sufficiency of the evidence to support his aggravated sexual assault conviction.

Under factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L.Rev. 515, 519 (1991)).

An appellate court, although to a very limited degree, may act as the so-called "thirteenth juror" to review the fact finder's weighing of the evidence and disagree with the fact finder's determination. Watson, 204 S.W.3d at 417 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), Meraz v. State, 785 S.W.2d 146, 156 (Tex.Crim.App. 1990)). If an appellate court concludes that the evidence is factually insufficient, it must clearly state why it has reached that conclusion. Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986)).

Per the law in effect at the time of the offense, a person commits aggravated sexual assault where he: (1) intentionally or knowingly; (2) causes penetration of the female sexual organ; (3) by any means; (4) of a child younger than fourteen years of age; and (5) the child is not the person's spouse. See Act of May 28, 2003, 78th Leg., R.S., ch. 896, § 1, 2003 Tex. Gen. Laws 896, 2722, (amended 2005) (current version at TEX. PEN.CODE ANN. § 22.021 (Vernon Supp.2006)); see also TEX. PEN. CODE ANN. § 22.011 (Vernon Supp.2006).

Analysis

First, Glockzin complains that evidence of J.M.'s genital warts suggests that he is an "invisible carrier" and infected J.M. through "genital-to-genital contact." Several days after the offense, Dr. Ann Sims of the Child Advocacy Center diagnosed J.M. with genital warts. The warts bled and hurt if touched. Sims could not determine how long J.M. had the warts, "but in all probability, it had been more than two weeks since she had come into contact with whatever caused the wart." She believes that "an eruption of warts" like J.M.'s would most likely result from "genital-to-genital contact" by which warts are commonly transmitted, as opposed to digital penetration. Sims also stated that "it is not impossible that a finger — either a finger that had come in contact with a wart just before it touched her or a finger that had a wart on it or something like that" may have infected J.M.

The record contains no evidence of genital warts among the individuals with whom J.M. has had contact. Glockzin denied having warts or being treated for warts. M.G. did not have warts. R.M., M.G., and J.M.'s Aunt, A.M., did not know anyone with warts. Underberg obtained medical releases from Glockzin, M.G., and M.G.'s boyfriend, but found no evidence of treatment for warts. Glockzin agreed to a visual inspection by Underberg, which revealed no warts. Even so, Sims testified that a person may be either visibly or microscopically infected and a physical exam is the usual method of diagnosis.

In response, Glockzin argues that: (1) though he has no visible warts, testing is available for detecting the human papilloma virus that causes the warts; (2) had he been tested, the issue would be resolved as to whether he infected J.M.; and (3) testimony regarding J.M.'s infection would have been improper if he tested negative for HPV. He urges us to take judicial notice of a scientific article addressing this method of testing, but which was not presented at trial.

Although the Texas Court of Criminal Appeals has held that appellate courts may take judicial notice of scientific literature not presented at trial, the Court recently refused to do so:

In his brief to this Court, the State Prosecuting Attorney presents a plethora of cites to scientific articles and learned treatises, as well as to some cases from other jurisdictions concerning this general area of scientific endeavor. This is swell stuff. The trial court should have been given this material, and appellant should have been allowed an opportunity to cross-examine any witnesses who sponsored it. The trial court hearing is the main event for Daubert/Kelly gatekeeping hearings; it is not a try-out on the road to an appellate scientific seminar.

. . .

It cannot now rely upon the appellate courts to become independent scientific sleuths to ferret out the appropriate scientific materials which could support the trial court's decision. . .

Hernandez v. State, 116 S.W.3d 26, 30-31 (Tex.Crim.App.2003); see Emerson v. State, 880 S.W.2d 759, 764-65 (Tex.Crim. App.1994). Because the scientific literature cited in Glockzin's brief was not presented at trial and because we find no authority "recognizing the methodology prescribed" in this literature, we decline to take judicial notice of this article. Davis v. State, 147 S.W.3d 554, 555-56 (Tex.App.-Waco 2004, no pet.); see Hernandez, 116 S.W.3d at 30.

Sims testified that while there is testing for DNA of HPV, it is unavailable in McLennan County, it is not "very accurate; it's not very sensitive; and it's not cost effective." Sims also testified that not every person will contract genital warts by coming into contact with HPV. The record neither shows who else may have abused J.M. nor conclusively establishes when she contracted the warts. The fact that J.M. suffers from a sexually transmitted disease that Glockzin purportedly lacks "does not make the evidence supporting the judgment so weak as to be manifestly unjust and clearly wrong." Thompson v. State, 85 S.W.3d 415, 420 (Tex.App-Fort Worth 2002, no pet.) aff'd 108 S.W.3d 287 (Tex. Crim.App.2003); see Watson, 204 S.W.3d at 415; see also Johnson, 23 S.W.3d at 11.⁴

Second, Glockzin argues that evidence of prior abuse is contrary to proof of his guilt. After disclosing the abuse, J.M. consistently repeated that Glockzin assaulted her and this was the only time. She has repeatedly denied any previous abuse and consistently describes the offense. However, Sims believes that J.M. may have been abused more often than she admits. Sims testified that J.M. did not likely contract warts from only one instance of abuse but may have been infected during an instance she does not recall. J.M. admitted that she had been experiencing pain and itching in her vaginal area since Christmas, approximately three months before the offense. She becomes upset if questioned further about additional abuse. Two years after she first examined J.M., Sims performed a second exam, which revealed that J.M's warts had mostly disappeared. This exam also revealed a tear in J.M.'s hymen. This tear most likely resulted from something other than digital penetration, which does not normally cause a tear.

Sims believes that J.M. is hiding something, maybe to protect herself and/or her family. R.M. feels this is not the only instance of abuse. M.G. and R.M. observed J.M.'s behavior change after disclosing the abuse. J.M. wanted to be alone and was not as playful with other children....