Harrell v. State, 06-16-00161-CR

• Decision Date: 06 July 2017
• Docket Number: No. 06-16-00161-CR,06-16-00161-CR
• Citation: Harrell v. State, No. 06-16-00161-CR (Tex. App. Jul 06, 2017)
• Parties: DONALD HARRELL, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

DONALD HARRELL, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-16-00161-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: June 13, 2017

July 6, 2017

On Appeal from the 5th District Court Bowie County, Texas

Trial Court No. 15F0778-005

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

On September 16, 2015, F.H.¹ made an outcry of sexual abuse against her uncle, Donald Harrell. As a result, a Bowie County jury convicted Harrell of two counts of aggravated sexual assault of a child² and one count of indecency with a child by contact.³ For each of the two convictions of aggravated sexual assault of a child, Harrell was sentenced to imprisonment for life, and for the conviction of indecency with a child, he was sentenced to imprisonment for twenty years, with the sentences to run concurrently.

On appeal, Harrell asserts that the trial court (1) lacked jurisdiction to convict him of the lesser-included offense of indecency with a child by contact and (2) that his substantial rights were affected by the trial court's error in admitting testimony of an extraneous offense because (a) he did not establish a rebuttable defensive theory and (b) the extraneous offense was not similar to the charged offenses. We find (1) that the trial court had jurisdiction to convict Harrell of indecency with a child, but (2) that Harrell's substantial rights were affected by the trial court's erroneous admission of extraneous-offense evidence on rebuttal. Consequently, we will reverse the judgment of the trial court and remand this cause for a new trial.

I. Trial Proceedings

At trial, the State offered the testimony of Lee Foreback, who is the director of social services and girls case worker at Watersprings Ranch (the Ranch).⁴ Foreback testified that F.H. was placed at the Ranch in January 2015 and that she had weekly interactions with F.H. On September 16, 2015, F.H. confided in her that F.H.'s uncle Donny (Harrell) had put his hand down her pants, made her watch bad movies, and had laid naked on top of her while she was naked and hunched on her. Foreback said that F.H. struggled with making the statements, but afterward, it was like a weight had been lifted off of her. Foreback reported the alleged abuse to the 1-800 hotline, to the police, and to F.H.'s father and took F.H. to the Children's Advocacy Center (CAC).

James Harrell, F.H.'s father and Harrell's brother, testified that he was a single father and had moved to New Boston, where his mother lived, with his daughter in 2011. When he found a job, F.H. would stay at his mother's house at 119 Hall Street while he worked. James testified that at the time, Harrell was living with their mother, and F.H. was nine years old. He said that at one point in time, he became uncomfortable with F.H. staying with his mother when his mother told him that her neighbors had called the police on Harrell. James also testified that F.H. had not told him about the sexual assaults and that he was devastated when Foreback told him about them.

Jasmine Baker testified that she sent F.H. to the CAC for a forensic interview and that she had taken the statement of Harrell. Harrell's interview was recorded on a DVD, and an edited version of the interview⁵ was played for the jury.

In the interview, Harrell denied that he inappropriately touched F.H., or any other child. Although he admitted that he watched pornography, he insisted that he did not watch child pornography. He said that he has both a computer and an iPad and that he never watched pornography on the computer. Rather, he said he watched it on his iPad in his bedroom with his door locked because he did not want his mother to see him. He also acknowledged that he was in the house when his mother would keep F.H. Harrell stated that he rarely watches anything sexual because he is sixty years old and takes so much medicine, he cannot do anything. He told Baker that she was welcome to look at the computer because there was nothing on it. Harrell also discussed with Baker a time that the police were called to his residence, and he explained that he had loose fitting pants with a drawstring that had fallen down in front of F.H., which he quickly pulled up and tied. He said the neighbors saw it and called the police, but that when the police came out, F.H. told them that nothing had happened.

After Harrell's statement was played, Baker testified that she did not take his computer into her custody since he admitted that he watched pornography. She also testified that F.H. did not have a sexual assault examination, and that no DNA was collected from either F.H. or from Harrell's house, since the alleged assault had occurred about two years before F.H.'s outcry and there was no likelihood that any evidence (if it had once existed) would have remained.

On cross-examination, Baker affirmed that Harrell had voluntarily come to the police station to give his statement and that no one made any allegations that he had child pornography on his computer. She also acknowledged that it was a possibility that Harrell was impotent because of the medicines he was taking.

F.H. testified that she was born in January 2004 and that when she was nine years old, she would stay with her grandmother when her father went to work or ran errands. She said that Harrell was living with her grandmother at the time. She said that her grandmother was always there, but that she would sometimes take naps. F.H. testified that Harrell had shown her digital recordings on the computer in the kitchen three or four times when her grandmother took a nap or would be in her sunroom, these recordings portraying a couple engaging in sex. She also testified that on two occasions, Harrell had her go into his bedroom, closed the door, and had her remove her clothes, including her pants and underwear. He would then have her lie face down on his bed; he would then remove his pants, get atop her, and begin humping on her. She said that when he did that, she would feel his penis touching her vagina. Harrell stopped when he heard his mother arise and told F.H. to don her clothes and return to the living room. She said that her grandmother's bedroom was beside Harrell's. Although F.H. told no one about these instances because she was afraid, Harrell never instructed her to remain silent about what had occurred. Foreback was the first person she told about what happened.

F.H. also testified about another time when she was sitting in the living room and Harrell came in, sat beside her, put his hands down her pants, and touched her privates but did not penetrate her vagina. F.H. said her grandmother did not see this occur because she was in the kitchen cooking dinner and Harrell ceased when her grandmother called them to dinner. She also said that on the day the police were called by the neighbors, Harrell was about to start weed-eating and tied his pants so they would not fall down. She said that he did not show her his privates that day and that she told this to the police.

On cross-examination, F.H. described the layout of her grandmother's house and said that one could not see into the kitchen from the living room. She affirmed that her grandmother was always at the house when she was present and that she was never alone with Harrell in the house. She testified that she had twice seen Harrell undress and saw his penis and testicles both times, but did not see anything odd. She said that when she saw Harrell watching videos at other times, they were recordings of younger adults.

Missy Davison, the program director at the CAC, testified that F.H. was interviewed by Kayleigh Dodson, an on-staff forensic interviewer, on October 7, 2015. She said that she had reviewed the tape of the interview and that in her opinion, F.H. did not appear to have been coached. She also testified that it is quite common for there to be a delayed outcry when sexual abuse has occurred.

After the State rested, Harrell testified on his own behalf, denying culpability for the charged offenses. He also acknowledged that he had a conviction for arson in 1977, two burglary convictions in 1983, and previous convictions for escape and unauthorized use of a motor vehicle. He testified that he had problems with drugs and alcohol when he was younger, but that he had eschewed alcohol and illegal drugs since 1994. Harrell testified that he has hepatitis C, herpes simplex 2, a bad heart, and a bad thyroid gland. These medical problems, among others, dictated that he take medicines for high triglycerides and cholesterol, diabetes, high blood pressure, chronic depression, and insomnia. He maintained that his medications have rendered him impotent. He also testified that in September 2011, he began interferon treatments that lasted until March 2012. He said that the treatments destroyed his immune system to the extent that he had constant diarrhea,upset stomach, skin peeling off his hands, and rashes and sores all over his body during these seven months. He also testified that his herpes simplex 2 manifested during these months in a big open sore on his penis. Harrell also testified that he had lost his left testicle in an accident.

Harrell agreed that F.H. described the layout of his mother's house accurately. However, he claimed that one could see into the dining room and kitchen from the living room. He also testified that he had a desktop computer that was kept in the dining room and open to the kitchen. On the other hand, he played video games and watched movies (including pornography) only on his tablet computer in his bedroom. Harrell said that his mother prepared the meals in his house and that she could see what is displayed on the monitor of his desktop computer from the kitchen.

On cross-examination, the State asked Harrell if being impotent meant that he has lost all sexual desire, to which he responded, "Sure. Mostly." He stated that he still looked...