Shaw v. State

• Decision Date: 20 November 2003
• Docket Number: No. 06-01-00130-CR.,06-01-00130-CR.
• Citation: 122 S.W.3d 358
• Parties: James William SHAW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

122 S.W.3d 358

James William SHAW, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00130-CR.

Court of Appeals of Texas, Texarkana.

Submitted November 19, 2003.

Decided November 20, 2003.

Joseph Leo Lanza, Richard Hayes and Associates, Houston, for Appellant.

Sherry Robinson, Dist. Atty., Douglas H. Pettit, Asst. Dist. Atty., Waller County Court House, Hempstead, and Matthew William Paul, State Prosecuting Atty., Austin, for State of Texas.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

James William Shaw appeals his conviction of aggravated sexual assault. A jury found Shaw guilty and assessed punishment at eight years' imprisonment, but recommended the imposition of punishment be suspended and Shaw placed on community supervision for five years.

Shaw contends the trial court erred in: 1) denying his motion for dismissal for failure to provide a speedy trial; 2) ruling that the disposition of prior charges was inadmissible; and 3) admitting a note by the alleged victim into evidence. Shaw further contends the evidence is both legally and factually insufficient to support the conviction.

Procedural Background

The grand jury indicted Shaw on one count of aggravated sexual assault occurring on or about January 19, 1997; two counts of indecency with a child occurring on or about February 28, 1997; and two counts of indecency with a child occurring on or about March 5, 1997, all involving the same alleged victim, J.B. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003), § 22.021 (Vernon Supp.2004). The State first tried Shaw before a jury March 18, 1998, on the aggravated sexual assault charge, one of the February 28 indecency with a child counts, and one of the March 5 indecency with a child counts. Before trial, the State dismissed the other two counts of indecency with a child. The jury acquitted Shaw of the two remaining counts of indecency with a child, but could not reach a verdict on the aggravated sexual assault charge. The trial court declared a mistrial on this charge. This appeal is from the second trial on the aggravated sexual assault charge. This second trial began February 23, 2001, after having been originally set for August 24, 1998.

In our original opinion, Shaw v. State, No. 06-01-00130-CR, 2002 WL 1300044, 2002 Tex.App. LEXIS 4256 (Tex.App.-Texarkana June 14, 2002) (not designated for publication), we sustained Shaw's first contention that the trial court erred in denying his motion for dismissal for failure to provide a speedy trial. Finding that contention dispositive, we deemed it unnecessary to address Shaw's other contentions and reversed and rendered a judgment of acquittal. The State appealed our ruling, and in an opinion delivered October 15, 2003, the Texas Court of Criminal Appeals reversed our judgment, holding that Shaw was not denied his right to a speedy trial, and remanded the case to us so that we may address Shaw's remaining contentions of error. Shaw v. State, 117 S.W.3d 883 (Tex.Crim.App.2003).

Background Facts

The State presented evidence that, on January 19, Shaw attended J.B.'s brother's birthday party at the home in which J.B. resided. Shaw left the party in the living room and went down the hall to the bathroom. J.B., who was eight years old at the time of the alleged offense, testified Shaw exited the bathroom, crossed the hall into her room, removed her panties, and fondled and licked her vagina. J.B.'s parents, David Boomer, Sr., and Bonnie Boomer, David Boomer, Jr., and Morgan Alewine all testified Shaw left the party, went down the hall, and returned. The testimony differs as to how long Shaw was gone. Morgan testified she saw Shaw go into the bathroom, but did not see him go into J.B.'s bedroom. None of the other witnesses saw exactly where Shaw went, just that he went down the hall. The State offered no scientific evidence or expert testimony.

Admissibility of Prior Charges

Shaw contends in his second point of error the trial court denied him his right of confrontation under the United States and Texas Constitutions by granting the State's motion in limine prohibiting Shaw from discussing the verdict of the first case. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. Before the start of the second trial, the State filed a motion in limine requesting Shaw be prohibited from alluding to or mentioning he had already been tried and acquitted of two counts of indecency with the complaining child, J.B. The trial court held a hearing on the motion in limine just before trial began February 16, 2001. At the hearing, the trial court stated, "I'm not going to rule at this time on whether or not you will be allowed to go into the prior verdict on the impeachment of that witness [J.B.] if she testifies." The trial court ruled on the motion in limine after the noon recess before the jury returned, stating, "[I]t's the Court's ruling that he cannot go into the acquittal. I don't find that that proves fabrication or that it's relevant for impeachment."

A ruling on a state's motion in limine that excludes defense evidence is subject to reconsideration throughout trial, and to preserve error, an offer of the evidence must be made at trial. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998); Fuller v. State, 827 S.W.2d 919, 929 n. 10 (Tex.Crim.App.1992). A review of the record shows Shaw never attempted to admit the acquittal into evidence during J.B.'s testimony. By failing to offer the evidence at trial, Shaw failed to preserve this point of error and it is overruled.

Admissibility of the Note

Shaw complains the trial court erred in admitting "the note" into evidence. The note is a handwritten note, or diary entry, written by J.B. Shaw contends the note is inadmissible hearsay and is not subject to any of the hearsay exceptions. "Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). The rules define "statement" as "(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by [that person] as a substitute for verbal expression." Tex.R. Evid. 801(a). The question presented here, then, is whether J.B.'s written note that Shaw licked her vagina and touched her is a "statement" within the scope of Rule 801(d). Whether the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the content of the out-of-court statement can be inferred from the context. Head v. State, 4 S.W.3d 258, 259 (Tex.Crim.App.1999). At trial the State argued for the admissibility of the note, contending it was an outcry statement. On appeal, the State further contends the statement is admissible under Rule 801(e)(1)(B): "A statement is not hearsay if: ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: ... (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Tex.R. Evid. 801(e)(1)(B).

A trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard on appeal. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim.App.1990), overruled on other grounds, Reyes v. State, 849 S.W.2d 812, 814 (Tex.Crim.App.1993). An abuse of discretion will be found "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). Even if the trial court's reason for its ruling is incorrect, the ruling will be upheld if it is permissible under any theory applicable to the case. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).

Although the State, at trial, did not attempt to admit this evidence under Rule 801(e)(1)(B), a trial court's decision will be sustained if it is correct on any theory of law applicable to the case, especially with regard to the admission of evidence. Id. The State, on appeal, contends the trial court properly admitted the evidence because Shaw attempted to imply J.B.'s family was motivated not by justice, but by the prospect of receiving money. To support this proposition, the State points to the testimony of Marielena Alewine, who testified Bonnie, J.B.'s mother, had talked to her about the prospect of getting money from Shaw or his family. Marielena was the defense's third witness during the defense's case-in-chief. However, the State admitted this evidence during the testimony of Linda Cullins-Craven, who was the second witness to testify at trial during the State's case-in-chief. The trial court therefore admitted the evidence long before any express or implied charge was made against J.B. of recent fabrication or improper influence or motive. Clearly, the State did not admit this evidence to rebut any charges. This evidence does not qualify under Rule 801(e)(1)(B).

The reason proffered by the State at trial in support of the admission of this evidence was that it constitutes an outcry statement. Texas Code of Criminal Procedure Article 38.072 provides for the admission of out-of-court statements by sexual assault victims under the age of twelve if the statement alleging the offense was made by a child against whom the offense was allegedly committed and was made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. Shaw contends this note is not an outcry statement because it was not made to "the first person, 18 years of age or older...." Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) (Vernon Supp.2004). Paul Rex, the investigating officer, testified "the mother had found [the note] in [J.B.'s] belongings." Bonnie testified she

found [the note] in my daughter's room on the floor. Sort of like a notebook,...