Reed v. State
| Decision Date | 31 August 2016 |
| Docket Number | NO. 02-14-00444-CR,02-14-00444-CR |
| Parties | TRAVIS REED APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION1Appellant Travis Reed appeals from his conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). In three points, appellant complains that his due process rights were violated when the State failed to disclose impeachment evidence, that the jury charge onpunishment violated his due process and due course of law rights, and that the $250 "DNA Testing Fee" assessed as court costs was unconstitutional.
Background
Appellant was a volunteer firefighter and medic and a volunteer with the children's ministry and the youth program at a church in Azle. The complainant in this case met appellant through the children's ministry.
The complainant, who was fourteen years old at the time of trial, testified that during a father-son campout sponsored by the church, appellant put his hands inside of the complainant's sleeping bag and rubbed the complainant's stomach and buttocks. The complainant was nine or ten years old at the time, and he did not tell anyone about what had happened at the time because he was scared. Appellant testified at trial and denied touching the complainant.
A little less than a year later, appellant hosted a bonfire and sleepover at his home for male church members. The complainant testified that appellant suggested that they share a sleeping bag but that he found a spare sleeping bag in appellant's shed and slept in it by himself. That night, appellant put his hands inside the complainant's pants and touched his genitals, stomach, and back. This allegation formed the basis for the charged offense.2
The complainant again testified that he did not tell anyone what had happened at the time because he was scared, and appellant testified that the contact did not occur. An adult chaperone at the bonfire testified that due to the number of people present and the size of the room,3 the contact could not have occurred because there were "way too many people that were present for that to occur."
Appellant, along with two other adults, taught Mixed Martial Arts (MMA) classes at the church. The complainant attended the classes. He testified that appellant told the boys to order very short MMA shorts and wear them to class. He further testified that appellant picked him up by his shorts and looked under them. At trial, appellant denied that this took place.
The complainant also testified that on another occasion, appellant took him and another child to a movie and that during the movie, appellant rubbed and tickled the complainant. The complainant further testified that on another occasion, appellant took him to eat at a Dairy Queen on the way home from a Pee Wee football game. Appellant sat next to the complainant in a booth and rubbed the complainant's thigh. Appellant denied sitting next to the complainant and rubbing his thigh.
The State called D.D. as a rebuttal witness. D.D. was seventeen at the time of the trial. D.D. testified that he attended the same church as appellant and the complainant and that he knew both of them through church. D.D. further testified that appellant took a special interest in him and tried to be a "special friend" to him. The two of them would do things together and hang out together.
D.D. testified that he took MMA classes with the complainant at church. According to D.D., appellant required the boys to wear very short shorts during the classes. D.D. stated that he felt very uncomfortable in class when appellant made them spread their legs to stretch and that he noticed appellant trying to look up his shorts in order to see his "privates." D.D. also testified that during a tour of the fire department, appellant "pantsed" him, meaning that appellant yanked D.D's shorts and underwear down to the ground, leaving D.D. uncovered from the waist down. D.D. was fourteen or fifteen at the time. Appellant denied that he "pantsed" D.D.
The jury found appellant guilty of indecency with a child as charged in the indictment. At punishment, the jury charge contained language authorized by statute regarding good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, § (4)(a) (West Supp. 2016). The jury assessed appellant's punishment at eight years' confinement, and the trial court sentenced him accordingly. The bill of costs assessed a $250 "DNA Testing Fee" as court costs.
Appellant timely filed a motion for new trial that claimed, in part, that the State withheld exculpatory evidence relevant to D.D.4 No hearing was held on the motion. Appellant's motion for new trial was deemed denied on December 30, 2014. See Tex. R. App. P. 21.8(a) (), (c) ("A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.").
Alleged Brady Violation
Appellant argues in his first point that his due process rights were violated when the State failed to disclose evidence that he could have used to impeach D.D., the State's rebuttal witness. D.D. testified that he left public school in the middle of his sophomore year, was homeschooled, and graduated from homeschool in June 2014. Appellant alleges that the State violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose D.D.'s school records,5 which appellant contends show that D.D. had disciplinary problems, was removed from school due to repeated disciplinary problems, hadpoor grades and was considered an "at risk" pupil at the time he withdrew from public school. Appellant asserts that had this information been provided to him, he could have cross-examined D.D. more effectively because "[D.D.'s] lack of veracity as demonstrated by explicit reference to the education records would have shown the jury that [he] lacked all credibility." Appellant contends that there is a reasonable probability that had this evidence been disclosed, the outcome of the trial would have been different.
The State argues that appellant waived this complaint by failing to request a hearing on his motion for new trial. In support of its argument, the State cites Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005), and Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993). These cases address whether the trial court abused its discretion by failing to hold a hearing on a defendant's motion for new trial. See Rozell, 176 S.W.3d at 229-30; Reyes, 849 S.W.2d at 815-16. No hearing was held on appellant's motion for new trial, but this is not his complaint on appeal. Thus, the cases cited by the State are inapposite to error preservation in this case.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on the request, objection, or motion, eitherexpressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
Appellant's motion for new trial was presented to the trial court. When the trial court failed to timely rule on the motion by written order, the motion was deemed denied on December 30, 2014. See Tex. R. App. P. 21.8(a), (c). Thus, we conclude appellant preserved his Brady complaint by raising it in his motion for new trial. See generally Pena v. State, 353 S.W.3d 797, 807-09 (Tex. Crim. App. 2011) ().
Due process required the State to disclose favorable, material evidence to appellant. See Brady, 373 U.S. at 87, 83 S. Ct. 1196-97. To establish reversible error for a Brady violation, appellant was required to show that: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. See Pena, 353 S.W.3d at 809; Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). With respect to the first prong, the State has a constitutional duty to disclose to a defendant material exculpatory and impeachment evidence in its possession. See Pittmanv. State, 372 S.W.3d 261, 269 (Tex. App.—Fort Worth 2012, pet. ref'd) (citing Pena, 353 S.W.3d at 810). This duty also requires the State to learn of Brady evidence known to others acting on the State's behalf in a particular case. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (citing Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68 (1995)); see Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (); Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 873 (1998) (...
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