Hudson v. State, No. 03-04-00733-CR (Tex. App. 8/18/2006)

• Decision Date: 18 August 2006
• Docket Number: No. 03-04-00733-CR.,03-04-00733-CR.
• Parties: ALAN HUDSON, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

ALAN HUDSON, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 03-04-00733-CR.

Court of Appeals of Texas, Third District, Austin.

Filed: August 18, 2006.

Do Not Publish.

Appeal from the District Court of Travis County, 403rd Judicial District, No. 3012894, Honorable Donald Leonard, Judge Presiding.

Affirmed.

Before Chief Justice LAW, Justices B. A. SMITH and PEMBERTON.

MEMORANDUM OPINION

BOB PEMBERTON, Justice.

A jury convicted appellant Alan Hudson of the offenses of indecency with a child by exposure and indecency with a child by contact. See Tex. Pen. Code Ann. 21.11 (West 2003). In seven issues on appeal, Hudson claims double jeopardy violations, insufficient evidence of identity and contact, charge error regarding punishment, ineffective assistance, and abuse of discretion in failure to grant a new trial based on newly discovered evidence. We will affirm the judgment of the district court.

BACKGROUND

The jury heard evidence that M.C. was sexually abused by Hudson, her mother's boyfriend, when she was seven years old and he was 30. M.C. testified regarding two different incidents. At the time of the incidents M.C. lived with her mother, Mary; her mother's boyfriend, Hudson; Hudson's daughter from a previous relationship; and Hudson and Mary's infant son.

The first incident allegedly occurred in June 2001 when M.C., who had been working with her mother outdoors in their garden, went inside. M.C. found Hudson in his computer room, and asked if she could have a popsicle. M.C. testified that Hudson responded that she "had to do something" for him. The State then inquired as to what Hudson told M.C. to do. At this juncture, M.C. became non-responsive. The record reflects that M.C. and the prosecutor had a sotto voce exchange that the court reporter was unable to transcribe. M.C. later testified that she had been embarrassed to discuss the incident in front of others. The State then requested a brief recess, which the district court granted. When the proceedings resumed, M.C. testified that Hudson told her to "put his weiner in [her] mouth." M.C. testified that she complied. M.C. also testified that, afterwards, Hudson told her to get a paper towel and put it beside the computer. M.C. testified that Hudson began "shaking his weiner" into the paper towel "so it can bring out milk." Afterwards, M.C. testified, Hudson allowed her to get a popsicle, threatening her with a "whooping" if she told anyone about the incident.

M.C. testified that the second incident occurred in the bathroom at around the same time as the first incident. She was in the bathroom washing her hands when Hudson came in, stood behind her, and "tried to put his weiner in [her] butt." M.C. testified, however, that she could not "feel his weiner." She added that Hudson again threatened her with a "whooping" if she disclosed his acts.

M.C. recounted that she first revealed the incidents to her friend, S.H. S.H. testified that M.C. divulged that Hudson "had done something bad to her and that she was in the bathroom." When asked specifically what M.C. had told her, S.H. testified, "Well, he came up behind her and was putting it in her." S.H. added that she related to her mother what M.C. had told her, and that her mother called Child Protective Services (CPS).

Cyndi Cantu, a forensic interviewer with CPS, testified that M.C. told her that Hudson "put his thing, which she called a thing, into her buttocks." Cantu then gave the following narrative, without objection:

She said this happened in the bathroom at her house. And she described both of them having their clothes on when this happened. I asked her to tell me about that and how that was, how she was able to feel that happen, and she said she could feel his thing poking through his pants. . . . She said that on a different day she was in a computer room with [Hudson], and he pulled down his pants and showed his thing to her. . . . When she was telling me about the description of the penis she then went on to talk about him asking her to put his thing into her mouth. . . . She went on to tell me that his thing did go into her mouth, that she could feel the hairs on her tongue when that happened. . . . She then just continued to flow with the information and told me that in that same incident her dad also was wanting her to touch his penis. And she described that she did touch his penis with one hand and described that his thing felt like goo, and that he had wanted her to wiggle it around with her hand, and she said that was on the same day.

Eventually, the State asked Cantu another question, inquiring into what M.C. said about the incident in the bathroom. Cantu explained:

I wanted to clarify with her a little bit more about how it was possible that the thing was in her butt if her clothes were on, and she told me, you know, she said I did feel it, and said that, that's when she told me that the—he had his pants on, she had a dress on, and that the thing, [Hudson's] thing was poking out, and she could feel it on her butt.

M.C.'s mother, Mary, testified that she was upset when she learned of M.C.'s allegations. Mary acknowledged, however, that on the day after she learned of the allegations, she told Detective Nancy Zimmerman, the police investigator assigned to the case, that M.C. was "recanting" her story. Mary admitted that this statement had been a lie—M.C. had never recanted—and attempted to explain that Hudson had been "everything" to her and that all she could think about was "[h]ow can I get him [Hudson] to come home" and how she "wanted it to all go away." Mary testified that she did ensure that Hudson would no longer have access to M.C. and, in fact, moved her children to California to live with her mother. Mary returned to Austin "to give Alan support" and eventually married him for a time.

While the couple was still married, Mary returned to California, but testified that she and Hudson talked on the phone "almost daily." During one such phone conversation, Mary recounted that Hudson admitted abusing M.C.:

I don't know how and when it happened but he said, [expletive] it, I did it. And I said, you did, what did you do? And he said, whatever [M.C.] is accusing me of, I did.

Mary hung up on Hudson, but he called her back "within five or ten minutes" and told her "he was sorry, he didn't mean to say it, and that he just wanted me to move on." Mary testified that their relationship "went down quickly" after the exchange, and that they eventually divorced.

Hudson testified in his defense. He denied ever touching M.C. in a sexual or inappropriate way. Hudson testified that M.C. once saw her mother having sex with him, and that M.C. also walked in on him masturbating in the computer room late at night. Hudson denied doing anything to M.C. in the bathroom other than giving her a "two seconds, normal, insignificant" hug. Hudson also attempted to explain the phone conversation he had with Mary, in which he allegedly admitted his guilt.

Q: Did you—what did you say to Mary in that phone call?

A: I told her, [expletive] it, I did it. And she asked me, what do you mean, about [M.C.]? And I said, I did it, again. Or rather, I said, I did it. She hung up. That was the end of it.

. . . .

Q: Mr. Hudson, did you call her back?

A: Yes, sir, I did, within five minutes.

Q: What did you tell her?

A: I told her that while this was—I wanted her to move on and I didn't want any more emotional obligations, or for her to have emotional obligations to me, that this was not the way I should have done it, but . . .

Q: Do you regret making that phone call?

A: I regret saying that I did something that I didn't do. I do not regret the consequences of it. I do not regret that she did move on, and my children are now better taken care of.

Hudson was indicted for aggravated sexual assault (Count One), indecency with a child by contact by touching M.C.'s anus (Count Two, Paragraph One), indecency with a child by contact by causing M.C. to touch his penis (Count Two, Paragraph Two), and indecency with a child by exposure (Count Three). The district court submitted the first two counts, but submitted indecency with a child by exposure as a lesser included offense within aggravated sexual assault. The jury found Hudson not guilty of aggravated sexual assault but found him guilty of indecency with a child by exposure¹ and both paragraphs of the indecency with a child by contact count.

During the punishment hearing, the State introduced evidence of extraneous offenses—occurring after his incidents with M.C. but before trial—to the effect that Hudson, then in his early thirties, had a sexual relationship with an underage woman and sought to entice another underage woman into a "three-way." See Tex. Pen. Code Ann. § 22.011(a)(2) (West Supp. 2005) (statutory rape). The district court did not instruct the jury that it must find the existence of these extraneous offenses beyond a reasonable doubt before it could consider them in assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2005). The jury assessed punishment at ten years' confinement for indecency with a child by exposure and sixteen years' confinement for each paragraph in count two. This appeal followed.

DISCUSSION

Double jeopardy

In his first issue, Hudson asserts that his convictions for both indecency with a child by exposure and indecency with a child by contact violated his double jeopardy rights against multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991); Barnes v. State, 165 S.W.3d 75, 87 (Tex. App.-Austin 2005, no pet.). We first note that Hudson did not make a double jeopardy objection during trial. A double jeopardy claim may be raised for the first time on appeal only when the double jeopardy violation is clearly apparent on the face of the record. Gonzalez v. State...