Render v. The State Of Tex.

• Decision Date: 15 September 2010
• Docket Number: No. 05-09-00528-CR.,05-09-00528-CR.
• Citation: 316 S.W.3d 846
• Parties: Nathan Nathaniel RENDER, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

316 S.W.3d 846

Court of Appeals of Texas Dallas.

Nathan Nathaniel RENDER, Appellant,v.The STATE of Texas, Appellee.

No. 05-09-00528-CR.

July 23, 2010.

Discretionary Review Refused Sept. 15, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Katherine A. Drew, Dallas County Public Defender's Office, Dallas, TX, for Appellant.

Craig Watkins, Dallas County District Attorney, Martin L. Peterson, Dallas County Assistant District Attorney, Dallas, TX, for State.

Before Justices BRIDGES, LANG, and LANG-MIERS.

OPINION

Opinion By Justice LANG.

This case is now before us on the State's motion to publish and Appellant's petition for discretionary review to the Court of Criminal Appeals. Pursuant to rules 47.2(b) and 50 of the Texas Rules of Appellate Procedure, we withdraw our opinion on March 19, 2010. This is now the opinion of the Court.

Following a plea of not guilty, appellant Nathan Nathaniel Render was convicted by a jury of continuous sexual abuse against a child younger than fourteen years of age during a period of at least thirty days. Tex. Penal Code Ann. § 21.02 (Vernon Supp.2009). Punishment was assessed by the jury at forty-six years' confinement. On appeal, appellant raises six issues: (1) the trial court erred by omitting a “not guilty” verdict form; (2) the trial court abused its discretion by responding to a jury note with testimony regarding the first incident of abuse without supplying the chronological context; (3), (4), and (5) the statute under which appellant was charged and convicted violates the unanimity requirement, due process, and due course of law; and (6) the evidence is factually insufficient to sustain appellant's conviction. We decide appellant's issues against him. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment in this case charged in relevant part that appellant committed two or more acts of sexual abuse against D.R., a child younger than fourteen years old. Complainant, ten years old at the time of trial, testified she lived in an apartment with her mother, brother, sister, and appellant, her stepfather. Complainant testified that while she was in the third grade, the “incidents” occurred with her stepfather. The first incident occurred around August of 2007. At eight o'clock one evening, complainant went to her bedroom to go to sleep. She shared her bedroom with her sister. Later that night, appellant awakened complainant and carried her to a chair in the living room. Appellant took off complainant's shorts and pulled out his “private part.” Complainant saw appellant put his “middle part” into her “middle part.” Complainant was crying, and appellant told her to stop crying. When complainant cried louder, appellant stopped and sent complainant back to her room. The next day, complainant did not inform anyone about what happened because she was scared appellant would repeat the actions.

At the end of 2007, around the Christmas holiday, the second incident occurred. Appellant came into complainant's room while she was sleeping and carried her to the same living room chair and he “did it again.” When complainant cried, appellant ordered her to stop crying. Complainant recalled a third incident occurred on a Friday after Christmas. Appellant repeated the same conduct.

The final incident recounted by complainant was in April of 2008. Appellant repeated the same conduct and made complainant touch his “middle part” with her hand and move her hand. When asked if complainant noticed anything strange about this time, complainant recalled her underwear “felt kind of wet.” When she went to bed, complainant took her underwear off, but changed back into them in the morning. The day after the final incident, April 27, 2008, complainant was watching television with her mother and brother when a Viagra commercial came on. The children giggled, and complainant's mother told her children if they ever needed to talk about anything, they could come to her. Complainant started crying and told her mother that appellant had “hurt her.” Her mother called the police. Complainant was taken to the hospital for an examination. Her clothes and underwear were confiscated. Melissa Hass, a forensic scientist, analyzed a semen stain on complainant's underwear she was wearing during the final incident. Hass concluded that the specimen found on the complainant's underwear belonged to appellant.

Jennifer Goldberg, previously a forensic interviewer at Dallas Children's Advocacy Center, testified complainant made an outcry of abuse during an interview with her. Complainant communicated to Goldberg in writing that “her dad put his penis in her middle.” Kim Davies, a nurse practitioner, examined complainant on the day the abuse was reported. During the exam, complainant informed Davies that “he stuck his private part in her front part, not all the way in.” Davies reported that complainant had a normal genital exam, in that there were no lacerations or bleeding, but that this does not confirm or rule out sexual abuse.

Detective Jonathan Hay interviewed appellant after appellant was arrested. During the first three hours of the interview, appellant continuously denied committing sexual assault against his stepdaughter. After Detective Hay mentioned that complainant stated the abuse happened on more than one occasion, appellant “made a comment or statement that it didn't happen, you know, many, many times, like what myself and Detective White were saying or implying. Later on into the interrogations he acknowledged, “well, it occurred on one specific date and it would have been that Saturday night, April 26, 2008 ... And that it involved touching, in the form of his finger to her vagina.”

Appellant was initially charged with indecency with a child. After complainant was interviewed and the investigation was complete, the charges were changed to continuous sexual abuse against a child. The jury found appellant guilty. Following the jury's assessment of forty-six years' confinement and appellant's sentencing, appellant filed this appeal.

II. OMISSION OF “NOT GUILTY” FORM

In his first issue, appellant contends the trial court erred by omitting a “not guilty” verdict form and appellant suffered egregious harm as a result of this omission.¹ The verdict form attached to the charge included alternatives for the jury to find appellant guilty of continuous sexual abuse and aggravated sexual assault of a child. It did not include a form for finding appellant not guilty. The State responds that any harm that appellant may have suffered was merely theoretical and does not constitute egregious harm.

A. Applicable Law & Standard of Review

In Jennings, the court of criminal appeals held that all jury charge errors, including errors or omissions in the verdict form, are cognizable on appeal despite a lack of objection in trial court. Jennings v. State, 302 S.W.3d 306, 311 (Tex.Crim.App.2010). In Jennings, the appellant was charged with burglary of a habitation with intent to commit aggravated assault. The court provided the jury with three verdict forms: (1) guilty of burglary of a habitation with intent to commit aggravated assault, (2) not guilty of burglary of a habitation with intent to commit aggravated assault, and (3) guilty of a lesser-included offense, burglary of a habitation with intent to commit assault. Id. at 308. There was no verdict form providing for acquittal of the lesser-included offense, and there was no objection to the omission. Id. The jury found the appellant guilty of the lesser-included offense, burglary of a habitation with intent to commit assault. On appeal, the Amarillo Court of Appeals held that the appellant waived any objection to the omission of the verdict form because of the failure to object at trial. Id. at 310-11. The Texas Court of Criminal Appeals reversed. After finding that the verdict forms are part of the jury charge, the court remanded to the appellate court for analysis of the asserted errors in the verdict form under the Almanza standard. Id. at 311; see Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).

In Jennings, the court stated that when verdict forms are attached to a jury charge, “it must set out every ‘guilty’ or ‘not guilty’ option that is available to the jury.” Jennings, 302 S.W.3d at 310 (citing Williams v. State, 24 Tex.App. 637, 7 S.W. 333, 336 (1888)). While the Jennings court noted that Williams is “still Texas law,” we must nevertheless apply the standard set forth in Almanza to determine whether the harm is so egregious to warrant reversal.

Under Almanza, the degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Almanza, 686 S.W.2d at 171; see Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon Supp.2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of defendant.” See Tex.Code Crim. Proc. Ann. art. 36.19. This means that if the charge contains error and the error has been properly preserved by objection, reversal is mandated as long as the error is not harmless. Almanza, 686 S.W.2d at 171. However, if no objection was made at trial to the jury charge, reversal is proper only if the error is so egregious and created such harm that it might be fairly said the defendant did not have a fair and impartial trial. Id.

In determining whether harm resulted from the trial court's omission of the not guilty verdict form, we must determine (1) the actual harm in light of the entire jury charge, (2) the state of the evidence, including contested issues and weight of probative evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the record. Ngo, 175 S.W.3d at 750 (citing Almanza, 686 S.W.2d at 171).

B. Application of Law to Facts

In this case, appellant did not object to the jury...