Palmer v. State, No. 01-08-00141-CR (Tex. App. 4/29/2010)
| Decision Date | 29 April 2010 |
| Docket Number | No. 01-10-00280-CR.,No. 01-10-00281-CR.,No. 01-10-00282-CR.,No. 01-08-00141-CR.,01-08-00141-CR.,01-10-00280-CR.,01-10-00281-CR.,01-10-00282-CR. |
| Parties | THOMAS OTIS PALMER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 23rd District Court* Brazoria County, Texas, Trial Court Cause No. 47165.
Panel consists of Justice KEYES, SHARP, and MASSENGALE.
A jury convicted appellant Thomas Otis Palmer of four counts of aggravated sexual assault of a child (01-08-00141-CR, Count 1; 01-10-00280-CR, Count 2, 01-10-00281-CR, Count 3; 01-10-00282-CR, Count 4), and the trial court assessed punishment at confinement for 80 years on each count, to be served concurrently. See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009). In two issues, Palmer argues that (1) the evidence was factually insufficient to support the jury's verdict and (2) the trial court violated his constitutional rights to confront his accuser by preventing him from cross-examining a child complainant about a prior, unrelated sexual abuse outcry.
We affirm.
This appeal relates to charges that appellant Palmer sexually abused three child complainants—C.M., L.M., and L.G. The conduct at issue was alleged to have occurred in or around April 2003. The youngest complainant, C.M., was four years old at the time of the alleged conduct. L.M. was seven years old at the time, and L.G. was twelve.
In April 2004, sexual abuse charges against Palmer relating to all three child complainants were presented in a consolidated trial. The jury could not reach a verdict, and the trial court granted a mistrial.
In March 2005, Palmer was tried on charges relating to L.M. only, and the jury convicted him of aggravated sexual assault of a child and indecency with a child by exposure. Palmer v. State, 222 S.W.3d 92, 93 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (Palmer I). During cross-examination of L.M. in the 2005 trial, the defense elicited testimony that L.M. previously accused her mother's female friend of sexually assaulting her. Id. at 94. In some respects this earlier outcry was factually similar to the accusations L.M. made against Palmer. Id. The trial court instructed the jury that it could not consider the evidence about the earlier sexual assault accusation unless it found beyond a reasonable doubt that the earlier accusation was false. Id. at 95. The Fourteenth Court of Appeals observed that the trial court found "some evidence of falsity" of the earlier accusation when it admitted the evidence for purposes of cross-examination. Thus, the court of appeals held that there was egregious jury charge error, reversed the conviction, and remanded the cause for a new trial. Id. at 96.
After remand, in November 2007 Palmer was tried in another consolidated trial on all charges pertaining to C.M., L.M., and L.G. The jury acquitted Palmer of all charges pertaining to L.M. and L.G., but the jury found Palmer guilty on four counts of aggravated sexual assault against C.M. Palmer appeals these four convictions.
References to trial testimony in this factual background section refer to testimony at the November 2007 trial, which resulted in the convictions from which Palmer appeals. Jill, the mother of C.M., L.M., and L.G., met Palmer in 2002 through a mutual friend. From late 2002 until April 2003, Jill and her three children lived together in Brazoria County with Palmer and his daughter, D.P. During this time frame, C.M., L.M., and L.G. were aged approximately four, seven, and twelve, respectively.
According to Jill and L.G., on the night before Easter Sunday 2003, Palmer took L.G. for a ride in his truck. When they returned approximately six hours later, L.G. went straight to bed, and Palmer told Jill that they had been delayed from their errand because his truck broke down. At trial, Palmer denied going anywhere with L.G. that night.
On the Thursday following Easter, L.G. told her mother that Palmer had taken her to the beach, forced her to inhale cocaine, and raped her in his truck. After L.G.'s outcry, C.M. told her mother that Palmer had been physically and sexually abusing her. L.M. later came forward with additional allegations against Palmer.
With the help of a neighbor, Jill took her children to the home of Palmer's father, where she spoke to Palmer's step-mother, Jenny Palmer. Jill then took her children to a women's shelter. Jenny testified at trial that she was aware of L.G.'s allegations against Palmer. Jenny said that she questioned L.M. and C.M. and they both denied that Palmer had touched them inappropriately. At trial, C.M. testified that she did not remember these conversations with Jenny, and L.M. testified that she vaguely remembered Jenny but did not really know her.
At trial, C.M. testified that her mother had told her to be brave but did not tell her what to say. C.M. testified that Palmer touched her "private parts" and "boobs." She said that he put his fingers inside her "private parts," "stuck his fingers in [her] butt," made her "suck on his private part," and touched her "private part" with his "private part." C.M. testified that when Palmer penetrated her mouth, "he told me not to bite hard." C.M. testified that the abuse occurred privately, "in the closet with him with the lights turned off." She also testified that "white stuff came out" and went into her mouth. Although she could not see in the dark closet, C.M. said she knew it was "white stuff" because she had seen it on a prior occasion or she must have spit it out and seen it on her hand. C.M. also testified that she could not remember which house the alleged abuse took place in or what Palmer's penis looked like.
On cross-examination, C.M. agreed with nearly all of the defense attorney's statements suggested in the form of leading questions, effectively denying that any abuse had occurred. She agreed that she had previously "sort of rehears[ed]" her testimony in the courtroom. She agreed that in conversations with her mother and with Jenny Palmer she had previously denied any sexual abuse, that she was telling the truth when she did so, and that her mother had told her "the white stuff business" and "the story about the dark closet." On redirect examination, the prosecutor asked her why she agreed with the defense attorney's statements, and C.M. responded, "Because I thought I had to." C.M. testified that she denied sexual molestation while she lived with Palmer out of fear of further abuse.
L.M. testified that Palmer once exposed himself to her and once fondled her "private part" with his hand. L.M. said that C.M. was in the room at the time of the molestation and that Palmer then took her to the kitchen to eat cereal.
L.G. initially refused to testify because she did not want to talk about the incident again. After the trial court admonished her that she had been subpoenaed and could be held in contempt of court, L.G. reluctantly testified. L.G. repeatedly answered questions by saying that she did not know, did not remember, or did not understand the question. However, L.G. also testified that Palmer drove her to the beach and made her remove her shirt and shorts and go swimming. When they returned to Palmer's truck, Palmer cut her panties off with a knife, performed oral sex on her, and raped her. L.G. said that Palmer warned her not to tell her mother about what happened.
The children's mother, Jill, testified that she had observed changes in her children's behavior, particularly C.M., who frequently had bruises and injuries. In early April 2003, Jill observed some inflammation to C.M.'s perineum, the region between her anus and genital area. At trial, Jill said it was "very abnormal" and that it was "like a hemorrhoid or even worse it was turned the wrong way out." When Jill asked C.M. about it, C.M. said she did not know what happened. Jill testified that C.M. said she would not tell her mother if Palmer had hurt her. According to Jill, Palmer later looked at the inflammation and spoke with C.M. alone. C.M. then told her mother that she had injured herself by trying to insert a tampon. Jill testified that Palmer threatened to kill her when he learned that Jill had asked C.M. if Palmer had touched her inappropriately. According to Jill, Palmer refused to let her take C.M. to a doctor.
After reporting the alleged abuse to police, the children underwent medical examinations. L.M. was examined at the Children's Assessment Center in Houston. Records of L.M.'s examination stated that there was no physical or anogenital trauma, noting: "Normal exam neither confirms nor denies allegations of sexual abuse."
L.G. was examined at the Children's Assessment Center, Texas Children's Hospital, and the ABC Clinic at The University of Texas Medical Branch at Galveston (UTMB). Dr. James Lukefahr, who examined L.G. at UTMB, noted that the examination was abnormal and consistent with acts described by her and the time lapse since the alleged last incident of abuse. Some of the details in the narrative taken by the UTMB social worker differed from the trial testimony by L.G. and her mother and from other accounts of the alleged assault against L.G. (as found in the other medical records). Both L.G. and her mother testified that the social worker must have made some mistakes in transcribing the narrative. The social worker died before trial and did not testify.
The State introduced C.M.'s redacted medical records from UTMB without objection. The defense introduced C.M.'s redacted medical records from Texas Children's Hospital. These records showed that C.M. was examined at UTMB and Texas Children's Hospital. According to the UTMB records, Jill reported that C.M. was "very scared, very angry, staying to herself, impatient, demanding, very hard to deal with sometimes." C.M. experienced burning when she went to the bathroom...
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