Quinton v. State

• Decision Date: 15 August 2001
• Docket Number: No. 10-00-090-C,10-00-091-CR,10-00-090-C
• Citation: 56 S.W.3d 633
• Parties: (Tex.App.-Waco 2001) LAWRENCE GENE QUINTON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 633

56 S.W.3d 633 (Tex.App.-Waco 2001)

LAWRENCE GENE QUINTON, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-00-090-CR, 10-00-091-CR

Court of Appeals of Texas, Waco

August 15, 2001

From the 54th District Court McLennan County, Texas Trial Court Nos. 1999-79-C and 1999-80-C

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

VANCE, Justice

In January 1999, two indictments were filed against Lawrence Quinton. In Cause No. 99-79-C, it was alleged in four counts that from 1989 to 1993, Quinton committed five acts of aggravated sexual assault of a child under age fourteen and indecency with a child younger than seventeen. The victim was his step-daughter, N.Q., who was between the ages of five and nine during those years. Tex. Pen. Code Ann. §§ 22.021, 21.11 (Vernon Supp. 2001). In Cause No. 99-80-C, it was alleged in five counts that from 1993 to 1997, Quinton committed six acts of aggravated sexual assault of a child under age fourteen and indecency with a child younger than seventeen against his niece, K.W. She was also between the ages of five and nine during those years. The cases were tried together, and Quinton was convicted on all counts. The jury sentenced Quinton to seventy-five years for seven acts of aggravated sexual assault, twenty years for three acts of indecency with a child, and ten years for one act of indecency with a child, all sentences to run concurrently.

About two months after trial, N.Q. recanted. (K.W. did not.) After a hearing on a motion for a new trial based on the recanted testimony, the court denied the motion.

Quinton brings various points on appeal. They can be placed into five groups.

1. The trial court erred in not granting a new trial because of the recanted testimony.

2. The trial court erred in allowing the State during the punishment phase of the trial to question a reputation

witness called by the defense with "have you heard" questions.

3. The trial court erred in not granting a mistrial after sustaining a defense objection about the State's closing argument during the punishment phase of the trial.

4. The evidence was legally and factually insufficient to prove Quinton guilty of one of the five acts allegedly committed against N.Q.

5. The evidence was legally and factually insufficient to prove him guilty of three of the six acts allegedly committed against K.W.

We will affirm the judgment in part and reverse it in part.

THE RECANTATION

The Legal Standard

For trials on or after September 1, 1993, motions for new trial based on newly discovered evidence, including recanted testimony, are governed by article 40.001 of the Code of Criminal Procedure. Tex. Crim. Proc. Code Ann. art. 40.001 (Vernon Supp. 2001); Ashcraft v. State, 918 S.W.2d 648, 652-53 (Tex. App. Waco 1996, pet. ref'd); Driggers v. State, 940 S.W.2d 699, 708 (Tex. App. Texarkana 1997, pet. ref'd); Monse v. State, 990 S.W.2d 315, 317 (Tex. App. Corpus Christi 1999, pet. ref'd). It states: "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Before September 1, 1993, the now repealed Rule of Appellate Procedure 30(b)(6) applies. It read: "A new trial shall be granted an accused for the following reasons: . . . (6) Where new evidence favorable to the accused has been discovered since trial . . . ." Tex. R. App. P. 30(b)(6) (repealed, and replaced by article 40.001).¹

Under both the statute and the rule, the standard of review for the denial of a motion for a new trial is abuse of discretion, i.e., whether the denial was arbitrary or unreasonable. Ashcraft, 918 S.W.2d at 652. The trial court is arbitrary or unreasonable in denying the motion if the record reflects: (1) the newly discovered evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); Ashcraft, 918 S.W.2d at 653. "[I]n cases 'where a witness has testified to material inculpatory facts against an accused and after verdict, and before motion for new trial has been acted on, such witness makes affidavit that he testified falsely,' the general rule is that the new evidence is probably true and a new trial should be granted." Ashcraft, 918 S.W.2d at 653 (quoting Williams v. State, 375 S.W.2d 449, 451 (Tex. Crim. App. 1964)). An exception to the general rule occurs when the trial court finds the recantation to not be credible based on the trial evidence and the evidence at a hearing on the motion. Id.; Driggers, 940 S.W.2d at 709; Monse, 990 S.W.2d at 318. "Credibility" is measured by whether the recantation is "probably true." Ashcraft, 918 S.W.2d at 653; Driggers, 940 S.W.2d at 709.

Application as to N.Q.

We begin our analysis by reviewing the state of the evidence in cases in which the finding of an incredible recantation and the denial of a new trial was found not to be an abuse of discretion.

In Ashcraft, the trial court evaluated the trial evidence about whether the abuse happened as well as the evidence at the hearing on the motion for new trial. Ashcraft, 918 S.W.2d at 654. The evidence at trial was that the child, who was twelve at the time of the abuse, made an outcry statement to her school counselor who had eleven years of experience, made another statement to a doctor who examined her, and was found during the doctor's examination to have a torn hymen and blunt force penetrating trauma. Id. The evidence at the hearing was that the child disliked foster care and wanted to return home, was being pressured by her mother who never believed her during weekend visits to recant, and had been led to believe that if she recanted she could go to England to live with her aunt and sister. Id. On the day the child signed the recanting affidavit, her mother took her unexpectedly to the defense attorney's office where she was told her father could get a life sentence for the crime. Id. Then her mother took her to the District Clerk's office where she was shown the photograph of her vagina which was used at trial, which she did not previously know, and the child became angry and ashamed. Id. Finally, her mother took her back to the defense attorney's office where she signed the affidavit. Id. The child testified at the hearing on the motion that she lied about the abuse because she was angry with her father for not protecting her from sexual assault by intercourse six or seven years earlier by the seven-year-old younger brother of the babysitter. Id. However, the doctor who examined her testified the vaginal injuries he found could not reasonably have been caused by a seven-year-old. Id.

In Driggers, the trial court heard testimony from the child (age six at the time of the abuse) at the hearing on the motion for new trial that she lied because her father gave her a hard whipping and she was angry. Driggers, 940 S.W.2d at 709. However, the child admitted her grandparents would no longer speak to her, she had been sad over the matter, and her mother's new boyfriend called her a liar. Id. A CPS worker testified that the mother could not remember the circumstances of the first recanting, that the child told the worker she could not remember whether anyone told her what to say in her recantation, and that the child's spontaneous answers during her original interview were markedly different from her reflective, hesitant answers during her recantation interview. Id. Finally, a counselor testified that a young child has extreme difficulty dealing with incest without the help of counseling (the child's mother never took her to counseling after the incident), and that the impact of the child's mother and her boyfriend calling her a liar would be immense. Id.

In Monse, the defendant pled guilty and signed a judicial confession after being shown statements by the child and her mother about the abuse. Monse, 990 S.W.2d at 317. The child and her mother recanted, after which the defendant said for the first time that he was drunk when the alleged abuse occurred, could not remember what happened, and simply took the child's word that he had abused her. Id. The motion for new trial was based solely on the filed recanting affidavits of the child and her mother. Id. The child's affidavit stated she lied so she could move out and live with her grandparents or biological father. Id. The mother's affidavit stated the child did not make the outcry statement to her, and that the child's grandparents had admitted coaching the child to lie about the abuse. Id. However part of the child's original statement was that her mother initially told her not to tell her grandparents about the abuse because Child Protective Services would get involved and that the defendant would have to move out. Id. This coupled with the defendant's signed confession and his failure to previously mention he was drunk and did not remember what had happened supported the denial of the motion.

The evidence pertaining to N.Q.'s recantation compares favorably with these cases. N.Q. testified at trial about multiple incidents of sexual abuse by Quinton. There was some medical evidence to support her story based on an examination by a physician, who also testified that N.Q. told him Quinton abused her. N.Q. recanted two months after trial around Christmas. She was estranged from her mother and living with Quinton's father and sister, who helped her prepare written, audio-recorded, and videotaped recantations.

At the hearing on the motion for new trial and in her written recantation, N.Q. said she lied "to get attention" because she never got to go places like her sister. She said she was...