Edward James Dwyer Jr. v. State
532 S.W.3d 535
| Tex. App. | 2017Background
- Appellant Edward J. Dwyer, Jr. was indicted for continuous sexual abuse of his daughter C.D. (Jan. 15, 2011–June 6, 2012) and aggravated sexual assault by digital penetration (on or about June 12, 2012); jury convicted on both counts.
- State presented C.D.’s testimony describing repeated touching/rubbing of her genitals starting as early as Jan. 2011 and a separate digital-penetration incident the week after her mother’s death (early June 2012).
- Dwyer gave inconsistent statements: admitted occasional arousal and that he had deliberately touched C.D.’s vagina in an interview; at trial he denied memory of some incidents and called some touches inadvertent.
- Trial court denied Dwyer’s pretrial motion to require venire members to remain seated/visible while parties exercised peremptory strikes; court excused the panel during the 20-minute strike period.
- Jury instructions told jurors they need not agree on exact dates and the State need not prove the exact dates alleged; indictment alleged the aggravated-assault date fell outside the continuous-abuse period.
- On appeal Dwyer raised (1) legal-sufficiency of continuous-abuse evidence, (2) inability to view venire while exercising peremptories, and (3) double jeopardy/charge error from jury being told dates need not be exact.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dwyer) | Held |
|---|---|---|---|
| Legal sufficiency of continuous-sexual-abuse conviction | Evidence (C.D.’s testimony and Dwyer’s admissions) supported multiple deliberate genital touches over >30 days with sexual intent | Insufficient: C.D. equivocated about Dwyer’s arousal; alleged pattern too vague to show intent on multiple occasions | Affirmed: Viewed in light most favorable to verdict, rational jurors could find repeated deliberate touching with intent over >30 days |
| Denial of motion to keep venire visible during peremptory strikes | Trial court acted within discretion; parties had full voir dire access and opportunity to observe reactions during questioning | Denial prevented intelligent exercise of peremptory strikes because appellant/counsel could not compare or observe panel during strikes | Affirmed: No abuse of discretion; failure to remain visible during strikes did not deprive right to intelligently exercise peremptories |
| Double jeopardy based on jury instruction re: dates | State argued indictment alleged aggravated assault occurred outside continuous-abuse period; no double jeopardy on the face of record | Jury instruction allowing disregard of exact dates enabled jury to base both convictions on the same single incident (double jeopardy) | Affirmed: No apparent double jeopardy on record because aggravated-assault date was outside continuous-abuse period; any charge omission did not cause egregious harm |
| Jury-charge omission (failure to instruct that convictions both require assaults outside same period) | The State emphasized both offenses and presented temporally separate allegations; evidence distinguished pre- and post–June 6 incidents | Omission created theoretical double-convicting risk by permitting same act to serve as predicate for both counts | Affirmed: Charge omission raised only a theoretical possibility of harm; under Almanza standard, appellant was not egregiously harmed given the evidence and arguments |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for reviewing legal sufficiency of the evidence)
- Laster v. State, 275 S.W.3d 512 (Texas Crim. App.) (legal-sufficiency review and deference to jury)
- Gonzales v. State, 2 S.W.3d 600 (right to intelligently exercise peremptory strikes requires opportunity to question jurors)
- Rios v. State, 122 S.W.3d 194 (trial court broad discretion over jury selection and voir dire limits)
- Almanza v. State, 686 S.W.2d 157 (egregious-harm standard for unobjected-to jury-charge error)
- Carmichael v. State, 505 S.W.3d 95 (continuous sexual abuse and aggravated sexual assault: legislative intent re: convictions)
- Gonzalez v. State, 8 S.W.3d 640 (appellate review limited where charge objections not preserved)
- Cosio v. State, 353 S.W.3d 766 (egregious-harm requires actual, not theoretical, harm)
- Martin v. State, 335 S.W.3d 867 (instruction that exact dates need not be proved is not incorrect)