Newton v. State
| Citation | 283 S.W.3d 361 |
| Decision Date | 13 June 2007 |
| Docket Number | No. 10-06-00160-CR.,10-06-00160-CR. |
| Parties | Bobby Blake NEWTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Brian W. Wice, Houston, TX, for appellant.
Bill R. Turner Brazos County Dist. Atty., Bryan, TX, for The State of Texas.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION ON PETITION FOR DISCRETIONARY REVIEW
A jury convicted Bobby Blake Newton of indecency with a child and aggravated sexual assault by contact and assessed punishment at twenty years' imprisonment on the indecency count and sixty years' imprisonment on the aggravated sexual assault count. Newton contends in four issues that: (1) the court abused its discretion by admitting outcry testimony; (2) the court abused its discretion by admitting extraneous-offense evidence under Rules of Evidence 404(b) and 403 (two issues); and (3) the evidence is legally insufficient to support the conviction for indecency with a child.
On original submission, this Court affirmed the trial court's judgment. See Newton v. State, No. 10-06-160-CR, 2007 WL 926184 (Tex.App.-Waco Mar.28, 2007) (mem.op.). As authorized by Rule of Appellate Procedure 50, we issue this modified opinion within thirty days after Newton filed his petition for discretionary review. TEX.R.APP. P. 50. On reconsideration of the issues presented, we will reverse and remand.
Newton's alleges in his fourth issue that the evidence to support his conviction for indecency with a child is legally insufficient because there is no evidence of venue in Brazos County.
"Unless ... disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume ... that venue was proved in the trial court." TEX.R.APP. P. 44.2(c)(1). To dispute proof of venue, the defendant must raise the issue specifically in the trial court. See TEX.R.APP. P. 33.1(a); Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978); Atwood v. State, 120 S.W.3d 892, 894-95 (Tex.App.-Texarkana 2003, no pet.); Mosley v. State, 643 S.W.2d 212, 216 (Tex.App.-Fort Worth 1982, no pet.). For the record to show affirmatively that the State did not prove venue, "the record [must] affirmatively negate[ ] whatever proof was made by the State on the matter of venue." Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex.Crim. App.1986). Newton refers to evidence that the abuse began in San Antonio. The State refers to the complainant Jane Doe's testimony that the "sexual abuse" began when Doe moved to San Antonio and continued until she moved to Franklin. Doe lived in San Antonio before moving to College Station in Brazos County and then to Franklin in neighboring Robertson County. The State also refers to evidence that Newton "insert[ed] a finger into [Doe's] private area" once in Brazos County.
Newton does not identify any place in the record where he disputed venue in the trial court, nor does he attempt to show that the record affirmatively negates the State's proof of venue or that the record affirmatively shows that mandatory venue lay elsewhere than in Brazos County. Therefore, we presume that the State proved venue in the trial court, and we overrule Newton's fourth issue.
Newton contends in his first issue that the court abused its discretion by admitting outcry testimony.
We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006). An abuse of discretion occurs when the court's decision lies outside the "zone of reasonable disagreement." Id. ().
Article 38.072 of the Code of Criminal Procedure describes the proper outcry witness as "the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." TEX.CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(2) (Vernon 2005). The Court of Criminal Appeals has construed this to mean the first adult Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990); Hanson v. State, 180 S.W.3d 726, 729 (Tex. App.-Waco 2005, no pet.). "[A] trial court has broad discretion in determining" the proper outcry witness. Garcia, 792 S.W.2d at 92; Hanson, 180 S.W.3d at 729; accord Elder v. State, 132 S.W.3d 20, 26 (Tex.App.-Fort Worth 2004, pet. ref'd).
The outcry witness, a psychotherapist who treated Doe, testified outside the presence of the jury that her notes for a date certain stated that Doe disclosed "that [Newton] had sexually abused [Doe] in the past."
Newton argues that the witness's "testimony was a general conclusion of abuse that did not describe the act in a discernible manner." Newton concedes that the witness was the first adult to whom Doe made a statement concerning Newton's offenses. Although the witness's testimony indicates that Doe's statement to her did not specify the manner or means by which Newton "sexually abused" her, the statement did clearly allege sexual abuse and clearly identified Newton as the abuser. In view of the broad discretion afforded trial courts in the determination of who is a proper outcry witness, we cannot say that the court's decision lies outside the "zone of reasonable disagreement." See Savedra v. State, No. 03-99-00590-CR, 2000 WL 1706992, at *2 (Tex.App.-Austin Nov.16, 2000, pet. ref'd) (). Accordingly, we overrule Newton's first issue.
Newton contends in his second issue that the court abused its discretion by admitting evidence of an extraneous offense under Rule 404(b). The State responds that the complained-of evidence was admissible to rebut Newton's defensive theory that the complainant had fabricated the allegations against him.
The abuse-of-discretion standard we previously referenced likewise applies when reviewing a trial court's decision to admit extraneous-offense evidence under Rule 404(b). Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App.2004); Moses v. State, 105 S.W.3d 622, 626-27 (Tex.Crim.App. 2003).
The complainant Doe is the daughter of Newton's former wife. Doe testified that Newton first sexually abused her when she was ten and awoke to find Newton touching her vagina. She said that he touched her in a similar manner "a couple of [other] times." When she was around twelve, she awoke to find Newton inserting his finger in her vagina. There were no other witnesses to these assaults. According to Doe, Newton did not say anything during the assaults, and he never threatened her or told her not to tell anyone.
The extraneous-offense evidence came from L.D., Newton's former stepdaughter from a marriage before Newton's marriage to Doe's mother.1 L.D. testified that Newton molested her over a seven-year period during the 1980's (about twenty-five years before the trial). Her first memory was Newton forcing her to perform oral sex on him when she was nine or ten. Another specific memory L.D. had was of Newton engaging in sexual intercourse with someone else (whom L.D. could not identify) and forcing L.D. to sit behind him and rub his scrotum. She could not remember how many times Newton molested her, nor could she recall if he said anything during these sexual assaults.
On cross-examination, L.D. testified that Newton also had penetrated her vagina with his penis. When she was in seventh grade, she told her mother about Newton's sexual abuse, but her mother did not believe her. The next year, she told a teacher, and the school notified Child Protective Services, which investigated the allegations. According to L.D., she recanted because her mother pressured her to do so.
A few years after L.D.'s mother and Newton divorced, L.D. married. Her husband and she worked with Newton at a donut shop. L.D. testified that she later wrote Newton a letter that basically said, According to L.D., the letter went into enough detail to make it clear that Newton had sexually assaulted her. As a result of the letter, Doe's mother called L.D. to discuss the letter's contents.
L.D. started therapy in 2003, about three years before trial, because she had begun cutting herself. She was diagnosed with bipolar disorder, severe depression, and anxiety. She attempted suicide when she first started therapy.
At the end of L.D.'s testimony, the trial court gave the jury an oral instruction limiting their consideration of L.D.'s testimony solely to "rebut the defensive theory of fabrication in connection with the offense alleged in the indictment before you in this cause and for no other purpose."
"Rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity." Moses, 105 S.W.3d at 626 (emphasis added). Rebuttal of a defensive theory is one of the permissible purposes for which evidence may be admitted under Rule 404(b). See Casey v. State, 215 S.W.3d 870, 880-82 (Tex.Crim.App.2007); Moses, 105 S.W.3d at 626; Ransom v. State, 920 S.W.2d 288, 301 (Tex.Crim.App. 1996) (op. on reh'g). In determining whether extraneous-offense evidence is admissible to rebut a defensive theory, a trial court can consider a defensive theory raised by defense counsel in an opening statement. See Powell v. State, 63 S.W.3d 435, 438-39 (Tex.Crim.App.2001); Bass v. State, 222 S.W.3d 571, 574 (Tex.App.-Houston [14th Dist.] 2007, pet. filed). Extraneous-offense evidence is also admissible to rebut a defensive theory raised during cross-examination of a State's witness. See Ransom, 920 S.W.2d at 301; Bass, 222 S.W.3d at 574; Swarb v. State, 125 S.W.3d 672,...
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