Watkins v. State, s. 2-96-110-C

• Decision Date: 22 May 1997
• Docket Number: 2-96-178-CR,Nos. 2-96-110-C,s. 2-96-110-C
• Citation: 946 S.W.2d 594
• Parties: Patrecia Eileen WATKINS aka Patricia Eileen Watkins, Appellant, v. The STATE of Texas, State. Christopher J. WHITESIDE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 594

946 S.W.2d 594

Patrecia Eileen WATKINS aka Patricia Eileen Watkins, Appellant, v. The STATE of Texas, State.

Christopher J. WHITESIDE, Appellant, v. The STATE of Texas, State.

Nos. 2-96-110-CR, 2-96-178-CR.

Court of Appeals of Texas Fort Worth.

May 22, 1997.

J. Rex Barnett, Earl R. Waddell, III, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Charles Mallin, Chief of Appellate Section, Danielle A. Legault, Jay Lapham, Mickey Klein, and Debra Ann Windsor, Assistant Criminal District Attorneys, Fort Worth, for State.

Before DAY, LIVINGSTON and RICHARDS, JJ.

OPINION

DAY, Justice.

A jury found appellants Christopher J. Whiteside and Patrecia Eileen Watkins guilty of the aggravated sexual assault of Watkins's eight-year-old son M.W. They were tried as co-defendants. The jury assessed both of their punishments at confinement for life in the Texas Department of Criminal Justice and a $10,000 fine.

On appeal, Whiteside raises six points of error and Watkins raises three. Both argue that the trial court erred by denying their motions to sever. Watkins further argues that the trial court erred by admitting evidence of prior acts of sexual misconduct not alleged in the indictment. She also asserts that the State made improper jury arguments alleging that Watkins was aware that M.W.'s father had also sexually abused him.

Whiteside contests the jury's general guilty verdict in three points of error. He contends that it was error for the trial court to convict him and sentence him for four separate offenses when the jury returned a general verdict of guilty, and he argues that the trial court erred by not instructing the jury to return a separate verdict for each count. In points of error four and five, Whiteside asserts that the trial court erred at punishment by admitting nonrelevant and prejudicial extraneous offense evidence showing that Whiteside had sexually abused his own sons in M.W.'s presence and that Whiteside had given M.W. an alcoholic drink and a pornographic book.

In Whiteside's case, we reform the trial court's judgment to properly reflect the jury's finding and affirm it as reformed. In Watkins's case, we affirm the trial court's judgment.

BACKGROUND

M.W. told his second grade teacher that his stepfather, Whiteside, was sexually abusing him. She notified the school's principal, and within a few days, Child Protective Services (CPS) was notified. A CPS specialist, Jerald Henderson, interviewed M.W. and referred him to Dr. Leah Lamb, a pediatrician, for an examination. The CPS investigation indicated that M.W. had been sexually abused by Watkins as well as Whiteside. Accordingly, CPS notified the police department.

Both Watkins and Whiteside were arrested. Whiteside was charged with four counts of aggravated sexual assault of a child and two counts of indecency with a child. Watkins was charged with three counts of aggravated sexual assault of a child and two counts of indecency with a child. See TEX. PENAL CODE ANN. §§ 21.11(a), 22.021(a) (Vernon 1994 & Supp.1997). They were tried as co-defendants.

Dr. Lamb testified that her examination of M.W. revealed physical findings consistent with sexual abuse. M.W. was admitted to in-patient psychiatric treatment at Cook Children's Hospital. Dr. Debra Kowalski, a child psychiatrist, treated him. She diagnosed M.W. as suffering from chronic post-traumatic stress disorder.

When M.W. testified, he initially told the jury that he did not remember most of what had happened. However, he eventually testified about his sexual abuse using anatomically correct dolls. M.W. testified that Whiteside touched M.W.'s penis, that Whiteside put M.W.'s penis in Whiteside's mouth, that Whiteside put Whiteside's penis in M.W.'s mouth, that Whiteside put his finger in M.W.'s anus, and that Whiteside put his penis in M.W.'s anus. M.W. further testified that Watkins put M.W.'s penis in her mouth, that she had M.W. put his fingers in her vagina, that she put M.W.'s penis in her vagina, and that she called M.W. into the room while Whiteside and Watkins were having sex and had M.W. put his penis in her mouth while Whiteside put his finger in M.W.'s anus.

MOTIONS FOR SEVERANCE

Both Whiteside and Watkins argue that the trial court erred by denying their motions to sever. They each filed motions to sever under article 36.09 of the Texas Code of Criminal Procedure, objecting to the prejudicial effect of evidence relevant to the prosecution of the other defendant that would be inadmissible if the cases were tried separately. Article 36.09 provides:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

TEX.CODE CRIM. PROC. ANN. art. 36.09 (Vernon 1981) (emphasis added).

Severance under article 36.09 is not a matter of right. It rests within the sound discretion of the trial court. See Garza v. State, 622 S.W.2d 85, 91 (Tex.Crim.App. [Panel Op.] 1980); Robinson v. State, 449 S.W.2d 239, 240 (Tex.Crim.App.1969); Routledge v. State, 834 S.W.2d 452, 459 (Tex.App.--Fort Worth 1992, pet. ref'd). However, denial of a motion to sever is outside the discretion of the trial court where: (1) one defendant has a prior admissible criminal record and the other does not; (2) the defendants are not charged with the same offense or with offenses growing out of the same transaction; or (3) the defendant has satisfied the burden of offering evidence showing a clear prejudice caused by the joinder. See TEX.CODE CRIM. PROC. ANN. art. 36.09 (Vernon 1981); Mulder v. State, 707 S.W.2d 908, 915 (Tex.Crim.App.1986); Robinson, 449 S.W.2d at 240-41; see also Silva v. State, 933 S.W.2d 715, 719 (Tex.App.--San Antonio 1996, no pet.); Stokes v. State, 853 S.W.2d 227, 241 (Tex.App.--Tyler 1993, no pet.).

Thus, a defendant seeking severance must: (1) file a timely motion for severance; and (2) offer proof in support of the grounds for severance. See Saunders v. State, 572 S.W.2d 944, 948 (Tex.Crim.App. [Panel Op.] 1978); Stokes, 853 S.W.2d at 241; see also Mulder, 707 S.W.2d at 915; Routledge, 834 S.W.2d at 459. Simply alleging that prejudice will result is not evidence of, or a sufficient showing of, prejudice under article 36.09. See Mulder, 707 S.W.2d at 915; Routledge, 834 S.W.2d at 459. Accordingly, if the motion to sever is not supported by evidence, its denial is not an abuse of discretion. See Mulder, 707 S.W.2d at 915; Sanne v. State, 609 S.W.2d 762, 776 (Tex.Crim.App.1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 432 (1981); Ransonette v. State, 550 S.W.2d 36, 41 (Tex.Crim.App.1976); Routledge, 834 S.W.2d at 459.

Neither Whiteside nor Watkins offered evidence in support of the grounds alleged in their motions to sever--that evidence relevant to the prosecution of the other defendant that would be inadmissible if the cases were tried separately would prejudice the case of each. However, Whiteside argues additionally that the trial court had no discretion to deny his motion because their prosecutions were improperly joined. He contends that they were not indicted for the same offense or offenses growing out of the same transaction. But he failed to raise this theory at trial. His motion to sever argued only that evidence relevant to Watkins's prosecution that would not be admissible if the cases were tried separately would prejudice his case. He put forth no other argument against joinder at trial.

When the complaint on appeal differs from that made at trial, the error is waived. See Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App.1993). The trial judge did not have an opportunity to rule on that legal theory, and the State did not have an opportunity to offer evidence and argue against it. See id.; Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992); Purtell v. State, 761 S.W.2d 360, 365-66 (Tex.Crim.App.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989); Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). Thus, Whiteside has waived this argument.

Because neither Whiteside nor Watkins met the burden of offering evidence that showed they would be prejudiced by joint trials, we hold the trial court did not abuse its discretion in denying their motions to sever. Accordingly, we overrule Watkins's second point of error and Whiteside's sixth point of error.

WATKINS'S OTHER COMPLAINTS

Watkins raises two other points of error. First, she argues that extraneous offense evidence admitted during the guilt/innocence phase of trial should not have been admitted. In her last point of error, she argues that the State made an improper jury argument during its argument at the close of the punishment phase of the trial.

Extraneous Offense Evidence

We first consider her argument that the trial court erred, during the guilt-innocence phase of trial, by admitting evidence of prior acts of sexual misconduct that were not alleged in her indictment. The testimony that Watkins complains of is M.W.'s testimony about instances when Whiteside touched M.W. on M.W.'s penis while they were living in Reno, Texas.

Watkins's assertion that this evidence was somehow evidence of other crimes, wrongs, or acts under Texas Rule of Criminal Evidence 404(b) is mistaken. Extraneous offense evidence must necessarily involve evidence of prior criminal conduct by the...