Hendrix v. State
| Decision Date | 16 November 2004 |
| Docket Number | No. 14-03-00952-CR.,No. 14-03-00950-CR.,No. 14-03-00953-CR.,No. 14-03-00951-CR.,No. 14-03-00954-CR.,14-03-00950-CR.,14-03-00951-CR.,14-03-00952-CR.,14-03-00953-CR.,14-03-00954-CR. |
| Citation | 150 S.W.3d 839 |
| Parties | William Curtis HENDRIX, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Kenneth E. Goode, Houston, for Appellant.
Carol M. Cameron, Houston, for State.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
MAJORITY OPINION
Appellant William Curtis Hendrix was charged with aggravated sexual assault in five cases consolidated for trial. Three cases (trial court cause numbers 955262, 955263, and 955264) involved acts alleged against M.S.; two cases (trial court cause numbers 955265 and 955266) involved acts alleged against B.S. A jury found appellant guilty as charged in all five cases and assessed punishment at life imprisonment in each case. The trial court ordered the sentences to run consecutively.
Appellant raises four points of error on appeal, arguing the trial court erred by (1) charging separate offenses in the disjunctive (point of error one); (2) failing to charge the jury on the lesser included offenses of indecency with a child by exposure and by contact (points of error two and three), and (3) cumulating appellant's sentences absent proof the convictions were for offenses occurring on or after September 1, 1997 (point of error four). We overrule points of error two, three, and four, and part of point of error one; we sustain point of error one as it relates to cause number 955264. Accordingly, we (1) affirm the judgments in trial court cause numbers 955262, 955263, 955265, and 955266; and (2) reverse the judgment of the trial court in cause number 955264 and remand that cause for further proceedings.
M.S. and B.S. are the minor children of Alfred S., Jr.1 In 1995, Alfred separated from the children's mother, and B.S., his son, moved in with Alfred. M.S., his daughter, continued to live with her mother. In 1997, Alfred filed for divorce, and M.S. moved in with Alfred and B.S.
Alfred characterized appellant, "Bill," as "the best friend of the family for a long time" who was like a "big brother" to him. Alfred shared a residence with appellant on two occasions. The first time was in 1997, when Alfred and B.S. stayed in appellant's apartment. The second time was in 1999, when appellant came to live with Alfred, M.S., and B.S., in a house on Burr Street that Alfred inherited when his father passed away in 1998. There was a period of about five months when Alfred and M.S. were living with Alfred's girlfriend at a different location, and, during this time, B.S. lived alone with appellant in the house on Burr Street. According to B.S., he and appellant slept in the same bed during that time. Later, when Alfred and M.S. moved back into the house on Burr Street, M.S. began sleeping in the bed with appellant, and B.S. slept on the floor.
On August 29, 2002, Alfred, B.S., and M.S. were visiting Alfred's stepmother, Debbie. M.S. was upset and asked Debbie's fifteen-year-old daughter to talk with her in private. After hearing what M.S. had to say, Debbie's daughter told the adults what M.S. had said, and Debbie then talked with M.S. M.S. told Debbie appellant had molested her and also talked about other things that appellant had done to her. Debbie observed some bruises on M.S. and that her vaginal area looked irritated. When Debbie told M.S. that Debbie had to tell Alfred, M.S. became hysterical, begging Debbie not to tell because appellant had threatened M.S. that, if she told, he would shoot Alfred, and CPS would take M.S. away.
After Debbie told Alfred what M.S. had said, Alfred asked M.S. what had happened. M.S. replied, "He touched me, dad." Alfred then took M.S. to the police station. From the police station, they went to Texas Children's Hospital, where Dr. Kathleen Ferrer conducted a sexual assault examination of M.S. the following day.
Dr. Ferrer found bruises, in different stages of healing, on M.S.'s buttocks and left leg. The genital examination did not reveal bruising, redness, tears, or lacerations, and the hymenal ring was intact. A visual examination of M.S.'s anus did not reveal any abnormal findings. M.S. told Dr. Ferrer that it had been about a week or so since the last time she was sexually assaulted. At the hospital, M.S. also told a pediatric emergency room physician that "Bill" was the assailant and the "last contact" had been a week ago.
After M.S.'s outcry, she and B.S. were placed in foster care. In October 2002, their uncle, Marcus S., became their temporary legal guardian. At that point in time, B.S. had not disclosed that appellant had sexually assaulted him. In late November 2002, Marcus took M.S. and B.S. to see a counselor, and, toward the end of the intake session when the psychologist asked B.S. whether he had been sexually abused, B.S. said, "yes." The psychologist knew who the perpetrator was from talking with M.S. When he asked B.S. if he did the same thing to him, B.S. said, "yes." The day after B.S. met with the psychologist, B.S. disclosed the sexual abuse to Marcus. Marcus contacted Child Protective Services, who, in turn, contacted the police department.
On February 11, 2003, Dr. Sheela Lahoti, a pediatrician at the Children's Assessment Center, examined B.S. B.S. told Dr. Lahoti "Bill" had touched his whole body with his hands and "private" and, specifically, that B.S.'s buttocks, mouth, and back were touched with appellant's "private." B.S. told Lahoti that he did not know how many times this had occurred, but the last time was in 2001. B.S. stated the contact hurt, but he did not bleed. The only abnormality Dr. Lahoti observed was some mild redness around the anus.
On July 15, 2003, the grand jury returned five indictments containing charges against appellant summarized as follows:
On or about August 15, 2002, appellant caused the penetration of the anus of M.S. by placing his sexual organ in the anus of M.S.;
On or about August 15, 2002, appellant caused the anus of M.S. to contact the sexual organ of appellant.
On or about August 15, 2002, appellant caused the penetration of the mouth of M.S. with the sexual organ of appellant;
On or about August 15, 2002, appellant caused the mouth of M.S. to contact the sexual organ of appellant.
On or about August 15, 2002, appellant caused the penetration of the female sexual organ of M.S. by placing his sexual organ in the female sexual organ of M.S.;
On about August 15, 2002, appellant caused the penetration of the female sexual organ of M.S. by placing his finger in the female sexual organ of M.S.;
On or about August 15, 2002, appellant caused the sexual organ of M.S. to contact the sexual organ of appellant.
On or about August 3, 1997, appellant caused the penetration of the anus of B.S. by placing his sexual organ in the anus of B.S.;
On or about August 3, 1997, appellant caused the anus of B.S. to contact the sexual organ of appellant.
On or about August 3, 1997, appellant caused the penetration of the mouth of B.S. with the sexual organ of appellant;
On or about August 3, 1997, appellant caused the mouth of B.S. to contact the sexual organ of appellant.
Appellant pleaded not guilty in each cause, and the five causes were tried together to a jury. At trial, the State presented testimony from the following witnesses: (1) Dr. Ferrer, who conducted the initial sexual assault examination of M.S.; (2) Officers Stacy Romano and Blake Present, who handled M.S.'s complaint of alleged sexual abuse; (3) M.S.; (4) Debbie S.; (5) Tiffany G., the outcry witness for M.S.; (6) Ellen Taft, a nurse who performed a sexual assault examination of M.S.; (7) Officer Matthew Dexter, who investigated the sexual abuse allegations of B.S.; (8) B.S.; (9) Alfred; (10) Frank M., Alfred's brother-in-law; (11) Mary M., M.S. and B.S.'s nine-year-old cousin; (12) Marcus S.; (13) Dr. Lahoti, the pediatrician who examined B.S.; (14) Daniel Sanders and Audrey King, psychologists; and (15) Judy Rambur, a psychologist at the Children's Assessment Center. The defense presented the testimony of Virginia Hendrix, appellant's mother, and Reagan Martinez, appellant's uncle.
All five causes were submitted to the jury in the same charge. For each cause number, the trial court set forth the allegations in the disjunctive.2 Appellant requested that the court submit lesser included offenses of indecency with a child by contact and by exposure for each cause number. The trial court submitted the lesser included offense of indecency by contact in cause number 955264, but denied appellant's request to submit the lesser included offenses in the remaining four causes.
The jury found appellant guilty as charged in all five causes and assessed punishment at life imprisonment in each cause. The trial court ordered each of the sentences to run consecutively.
In his first point of error, appellant contends the trial court erred in charging the jury in the disjunctive for each cause number. He contends the charge submitted permitted the jury to convict him without reaching a consensus as to which paragraph of the indictment the State had proven beyond a reasonable doubt, resulting in a less than unanimous verdict.
Texas law requires a unanimous jury verdict in felony criminal cases. Tex. Const., art. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp.2004); see also Molandes v. State, 571 S.W.2d 3, 4 (Tex.Crim.App.1978) (); Phillips v. State, 130 S.W.3d 343, 351-52 & nn. 6-7 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) (). Generally, instructing the jury on...
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