Tolbert v. State, 03-16-00505-CR

• Decision Date: 22 December 2017
• Docket Number: NO. 03-16-00505-CR,03-16-00505-CR
• Citation: Tolbert v. State, NO. 03-16-00505-CR (Tex. App. Dec 22, 2017)
• Parties: Shawn Aric Tolbert, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Shawn Aric Tolbert, Appellant v. The State of Texas, Appellee

NO. 03-16-00505-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

December 22, 2017

FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT

NO. 72931, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Shawn Aric Tolbert guilty of two counts of aggravated sexual assault of a child, see Tex. Penal Code § 22.021(a)(1)(B), (2)(B), and one count of indecency with a child by sexual contact, see id. § 21.11(a)(1), for sexually abusing his stepniece, T.B.P., over a six-year period beginning when she was seven years old. Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge sentenced him to serve 12 years in the Texas Department of Criminal Justice for each offense, ordering the sentences to be served concurrently, see Tex. Penal Code §§ 12.32, 12.33. On appeal, appellant challenges the admission of evidence of extraneous sexual offenses, contests the admission of improperly bolstering testimony, complains about the denial of his motion for mistrial, and asserts that he suffered egregious harm due to jury charge error.

BACKGROUND¹

The State charged appellant with three sexual abuse offenses for conduct perpetrated against T.B.P. when she was a child.² T.B.P.'s mother was married to appellant's older brother,³ and the family attended the church pastored by appellant's father. T.B.P., her older sister, and younger brothers often stayed in appellant's home and, at times, lived there.

T.B.P. testified that in 1993, when she was seven years old and in the second grade, appellant, who was 17 at that time, began to engage in sexual conduct with her. The sexual conduct continued until she moved out of state with her mother and siblings when she was 13 years old. In her testimony, T.B.P. described numerous incidents of sexual abuse during those years, including appellant making her masturbate him, appellant compelling her to perform oral sex on him, appellant performing oral sex on her, and appellant penetrating her sexual organ with his penis. T.B.P. indicated that sometimes appellant's sexual abuse of her involved other children, including her sister, S.P., and her cousin, A.M.⁴

A few years after T.B.P moved away with her mother and siblings, her sister, S.P., dated a man who turned out to be 34 years old. During the course of the criminal investigation ofthat relationship, a letter S.P. wrote to the man involved was discovered. In that letter, S.P. revealed that she had been sexually molested by her uncle (appellant). This information caused their mother to ask T.B.P. if she had ever been molested. T.B.P., 15 years old at that time, reluctantly disclosed that appellant had sexually abused her. Her mother took her to the authorities investigating the case involving her sister, and T.B.P. told the detective about some of appellant's sexual abuse. The family was informed that the matter would be referred to the Temple police department (the jurisdiction where the abuse occurred) and the family assumed that an investigation would ensue.

Three or four years later, however, T.B.P. and her family learned that the matter had not been pursued by the Temple police. The Temple detective who had initially spoken with them had died shortly after receiving the case, without making any record or report concerning the matter, and the matter was not investigated. At that time, T.B.P., S.P., their mother, and A.M. traveled to Temple to meet with the detective who had replaced the deceased detective as an investigator of crimes against children. The detective interviewed them but no written statements were made. The detective sent a follow-up email to T.B.P. requesting a written statement. T.B.P. emailed back a timeline of events and then a follow-up email asking if she needed to mail the timeline as well. The detective did not respond to T.B.P.'s emails. It is unclear from the record whether the detective received the emails from T.B.P., but the record reflects that, once again, nothing happened with the investigation.

Seven years later, when T.B.P. was an adult, she became frustrated and angry that no investigation concerning appellant's sexually abusive behavior had been conducted. She began a campaign designed to motivate action by law enforcement—publicly making allegations againstappellant on social media and in a series of emails to various public and school officials in Temple. Her efforts attracted the attention of the Temple chief of police who assigned a detective to activate the cold case investigation. As a result of that investigation, appellant was charged with the instant offenses of sexual assault of a child and indecency with a child by sexual contact for sexual acts perpetrated against T.B.P.

DISCUSSION

Appellant raises six points of error in this appeal. In his first three points of error, he challenges the admission of evidence of extraneous sexual offenses admitted pursuant to article 38.37 of the Texas Code of Criminal Procedure. In his fourth point of error, appellant contends that the trial court erred by admitting improperly bolstering testimony. In his fifth point of error, he complains about the denial of his motion for mistrial. Finally, in his last point of error, appellant claims that he suffered egregious harm due to jury charge error.

Admission of Extraneous Sexual Offenses

During the guilt-innocence phase, the trial court admitted the testimony of four witnesses who testified that appellant perpetrated sexual offenses against them when they were children:

• S.P., T.B.P.'s sister, was 30 years old at the time of trial. She testified that appellant sexually abused her when she was in elementary school and middle school, beginning when she was eight years old. She indicated that appellant showed her pornographic materials and engaged in various sexual acts with her, including performing oral sex on her, compelling her to perform oral sex on him, and penetrating her sexual organ with his fingers and sex toys. S.P. stated that these sexual acts happened "multiple times" "at least two to three times per week" over the years before she moved away.

• A.M., appellant's cousin, was 31 years old at the time of trial. She testified that when she was a child appellant performed oral sex on her or made her perform oral sex on him "lots of times," penetrated her sexual organ with his fingers "numerous times," and tried to penetrate her sexual organ with his penis on one occasion. A.M. said that appellant's sexual abuse of her "happened [her] entire childhood" when she lived in Texas.

• A.P., appellant's cousin and A.M.'s brother, was 33 years old at the time of trial. He testified about sexual acts appellant engaged in with him when he was a teenager between the ages of 14 and 16. A.P. described the first sexual encounter that happened when appellant picked A.P. up during the winter school break and took him to his (appellant's) apartment in Dallas. Appellant took A.P. to an arcade to celebrate A.P.'s birthday, gave him beer afterwards, and then later "[taught him] how to massage." The massage started with appellant touching A.P. "everywhere," including A.P.'s penis, and progressed to appellant masturbating A.P. and then performing oral sex on him. Appellant then had A.P. stroke appellant's penis and perform oral sex on him. The Dallas visit lasted about one week, and appellant engaged in sexual acts with A.P. "more than once." A.P. also described a "sex party" with appellant and appellant's girlfriend when A.P. was 16 years old and appellant touched him and performed oral sex on him. When asked about the number of times appellant engaged in sexual activity with him when he was between the ages of 14 and 16, A.P. indicated that he "[knew] it was more than two" but "[couldn't] say if it was 20, though."

• P.D., who was 33 years old at the time of trial, knew appellant and his family from church. He testified that when he was 12 years old his mom worked the night shift and she would occasionally send appellant by to check on P.D. to make sure he was okay. P.D. described an occasion when he was sleeping in his apartment while his mom was at work and appellant, who had a key to the apartment, "came into [P.D.'s] room, woke [him] up, pulled [his] pants down, and grabbed [his] penis and started to ejaculate it or trying to ejaculate it" by grasping his penis "firmly" and moving his hands up and down. P.D. said that he tried to act like he was asleep, and eventually appellant stopped masturbating him and left.

The State offered, and the trial court admitted, the testimony of these witnesses pursuant to article 38.37 of the Texas Code of Criminal Procedure.

Under section 2(b) of article 38.37, in trials for certain enumerated sexual crimes against children, including aggravated sexual assault of a child and indecency with a child by sexual contact, evidence that the defendant has committed one of the child sexual abuse offenses described by the statute against a child other than the victim of the charged offense is admissible "for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with that character." Tex. Code Crim. Proc. art. 38.37, § 2(a)(1), (b). Before a trial court can admit such evidence, it must first conduct a hearing out of the presence of the jury to determine whether the evidence likely to be admitted at trial concerning the separate sexual abuse offense will be adequate to support a jury finding that the defendant committed the separate offense beyond a reasonable doubt. See id. art. 38.37, § 2-a.

In this case, the trial court conducted the requisite hearing, during which the court heard testimony from S.P., A.M., A.P., P.D. and two additional witnesses, D.D. and T.B.-A.⁵ The testimony of the witnesses described extraneous sexual offenses perpetrated by appellant when h...