Hood v. State, No. 07-02-0524-CR (Tex. App. 3/23/2004)
| Decision Date | 23 March 2004 |
| Docket Number | No. 07-02-0524-CR,07-02-0524-CR |
| Parties | DENNIS HOOD, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 181st District Court of Potter County, No. 45,506-B, Hon. John Board, Presiding.
Panel E: Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1
In this appeal, appellant Dennis Hood seeks reversal of his conviction of aggravated sexual assault of a child under the age of 14 years. The punishment, enhanced by two previous felony convictions, was assessed at life imprisonment in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). In seeking reversal, appellant advances two points for our decision. In his first point, he argues he is entitled to reversal because other charges were added after the reversal of his first conviction of this offense. In his second point, he asserts the evidence is factually insufficient to support the verdict of the jury. Disagreeing that reversal is required, we affirm the judgment of the trial court.
Appellant was originally indicted by a Potter County grand jury on November 17, 1994, for the offense of aggravated sexual assault of a child under the age of 14 years. The case proceeded to trial under that indictment, and appellant was convicted with his punishment being assessed at 65 years confinement in the TDCJ-ID. Upon appeal to this court, the conviction was reversed and the cause remanded for new trial. See Hood v. State, 944 S.W.2d 743 (Tex. App.-Amarillo 1997, no pet.). On June 25, 2002,2 the State obtained a re-indictment for the offense with the addition of two allegations concerning appellant's previous convictions of felony offenses. If those additional allegations were found to be true by the trial jury, as they were, the punishment ranges were increased from a potential penal punishment for life or any term of not more than 99 years or less than five years to penal confinement for life or for any term of not more than 99 years or less than 25 years. See Tex. Pen. Code Ann. §§12.32 and 12.42(d) (Vernon 2003 and Vernon Supp. 2004). It is the addition of the allegations concerning appellant's prior convictions that give rise to his claim of prosecutorial vindictiveness presented in his first point.
The nature of appellant's challenges requires us to recount relevant portions of the evidence. Lekelia Shaw, the complainant, testified that she was born on February 10, 1981. In mid-July 1994, she lived in a household consisting of herself, her mother Jamie Shaw, her three-year-old brother Chad, her cousin Kristie Titus, and Kristie's friend LaShawn Moore. Appellant was a friend of Kristie whom Lekelia met shortly after Kristie moved into the Shaw residence. He became a daily visitor to the household.
On the day of the occurrence, Lekelia said she was in her mother's room talking on the telephone when appellant suddenly appeared and started fondling her breasts. Lekelia told appellant to stop, told the person to whom she was talking on the telephone she would call back, and hung up the telephone. She then went to her bedroom with appellant following her. Appellant ordered her to remove her T-shirt and when she refused to do so, he tore the shirt down the middle. He then pulled down her shorts, pulled his jeans and undershorts to his knees, pushed her onto the bed, and as she tried to push him away, got on top of her and sexually assaulted her.
After the assault, she averred, appellant threatened to "whip her ass" if she told anyone about the assault. He went to the living room, briefly tried to make conversation, and left. Lekelia then threw her torn T-shirt into the dumpster, and took a prolonged bath in which she stayed until her mother returned. She testified that appellant penetrated her vagina and she was not married to him at the time.
Lekelia admitted she did not report the occurrence until October 4, 1994; however, she said, that delay was because she was afraid of her mother's reaction. On October 4, 1994, her mother and Kristie got into an argument about Lekelia wearing Kristie's clothes. In the course of that argument, Kristie made a remark about Lekelia being fat, to which Lekelia responded that Kristie's friend, appellant, apparently did not think she was fat because he had raped her. Her mother then questioned Lekelia about the rape and summoned the police. The police interviewed Lekelia, took a written statement from her, and she underwent a sexual assault exam at the hospital.
Lekelia admitted that she had possibly had a prior sexual experience with a 14-year-old-boy on St. Patrick's Day 1994. They were both naked and she believed they had sex but "she didn't feel anything." She admitted that she had not told the police investigator about that possible sexual encounter because her mother was present at the time and she was afraid of her mother's reaction.
Sexual assault nurse examiner Becky O'Neal testified that she performed a sexual assault examination of Lekelia. She found two well-healed two millimeter tears to Lekelia's hymen at the four o'clock and six o'clock positions which could have occurred as a result of consensual or non-consensual sex. She could not determine when the tears occurred.
Jamie Shaw, Lekelia's mother, testified that Lekelia stayed at home while Jamie worked and Chad was placed in day care. She said the October 4, 1994 argument between Lekelia and LaShawn was about clothes and she called the police as the result of a statement made during the argument. She admitted that she had previously testified that the argument between them was when she told LaShawn that she was going to have to move out but, she averred, this argument occurred after the one over the clothes. Jamie also testified that Lekelia's behavior changed after mid-July 1994. Lekelia had been out-going prior to that time but after the incident, she wanted to be alone and spent long periods in the bathroom.
Kristie Titus, who graduated from high school on June 1, 1996, testified that she had lived with Jamie Shaw, who was her aunt. She said that LaShawn was her best friend. She averred that the October 4, 1994 argument was not about clothes because she could not wear Lekelia's clothes. Rather, she said, the argument was the result of Kristie telling Shaw that she and LaShawn saw Lekelia in a parked car possibly having sex. Shaw began yelling at Lekelia, and Lekelia replied that she had not told her "about the time [appellant] raped me." It was then that discussion of the incident with Lekelia was dropped and their attention diverted to the sexual assault incident.
Terry McCarthy, the safety director for Plains Transportation, testified that according to their records, appellant was driving a truck between Weatherford, Oklahoma, and Plainview and Amarillo until 4:45 p.m. on the date of the alleged occurrence. LaShawn Moore averred that the October argument began because Kristie reported to Shaw that she had seen Lekelia and a boy in a parked car with the windows steamed up. It was then that Lekelia retorted that she "didn't say nothing when [appellant] raped [her]." Appellant took the stand and testified that he did not rape Lekelia, fondle her breasts, have sexual contact with her, threaten her, throw her on the bed, or tear her clothing.
The State initially responds to appellant's claim of prosecutorial vindictiveness by arguing that the question was not properly preserved for our review. In doing so, it points out that the procedural history of this case shows that appellant alternately opted between representing himself and having counsel do so. The clerk's record reveals that appellant had filed a pro se motion to quash the trial indictment because of prosecutorial vindictiveness in including the prior conviction allegation. The record is not clear whether the motion was filed at a time when appellant was representing himself or when he was represented by counsel. However, in considering the motion, the trial court posited it was filed at a time when appellant was not represented by counsel. The gist of the State's argument is that there is no right to hybrid representation and once an appellant has retained an attorney, the trial court is entitled to look solely to the attorney and is not required to consider pro se motions. In advancing that proposition, appellant relies upon the holdings in Ashcraft v. State, 900 S.W.2d 817, 831 (Tex. App.-Corpus Christi 1995, pet. ref'd), and Busselman v. State, 713 S.W.2d 711, 714 (Tex. App.-Houston [1st Dist.] 1986, no pet.).
However, we believe the correct rationale in considering such matters is that applied by the court in Meyer v. State, 27 S.W.3d 644 (Tex. App.-Waco, 2000, pet. ref'd). In that case, the court opined that although a defendant does not have a right to hybrid representation, in the exercise of its discretion, the trial court may allow him to do so. Id. at 648. Thus, by considering and ruling upon a pro se motion, the trial court has essentially allowed the defendant hybrid representation upon that one motion. Id. Therefore, when the trial court did so, the motion that was filed pro se by the defendant was valid and as effective as any other motion filed by an attorney. It is true that the trial court was not required to consider the motion, but when it did so, its ruling became subject to review upon appeal. Thus, even assuming arguendo that appellant was represented by counsel at the time he filed his pro se motion, that fact would not change our ruling. We must, therefore, consider the merits of this point.
The seminal case in the area of unconstitutional judicial vindictiveness was the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In that case, reasoning that to hold otherwise might...
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