Hershell L. Stewart v. State
05-15-00352-CR
| Tex. App. | Feb 2, 2017Background
- Hershell L. Stewart convicted by jury of aggravated sexual assault of his stepdaughter (digital penetration); sentenced to 20 years. Appeal from Dallas County Criminal District Court No. 7.
- Indictment alleged appellant intentionally and knowingly caused contact and penetration of the victim’s sexual organ with his finger; statutory aggravated assault requires penetration (Tex. Penal Code §22.021).
- Jury charge permitted conviction if jurors found either "contact or penetration"; did not instruct jurors to be unanimous as to which act (disjunctive phrasing).
- Victim (C.B.) testified to three episodes of abuse, including vaginal digital penetration and penile intercourse; testified the acts were "the same every time." Appellant denied any touching or penetration.
- Defense did not object to the unanimity/election defect in the charge at trial; appellant later challenged admission of psychiatric testimony (Dr. Choe) regarding victim’s PTSD, depression, flashbacks, and a hearsay statement that the victim blamed her mother.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Stewart) | Held |
|---|---|---|---|
| Jury unanimity/election due to charge wording ("contact or penetration") | Evidence showed only penetration was alleged and proved; contact was subsumed in penetration so no risk of nonunanimous verdict | Charge allowed conviction on contact alone, risking non-unanimous verdict; deprivation of unanimity | Affirmed: No egregious harm; record shows case was tried and argued as penetration-only and likelihood of nonunanimous verdict was "exceedingly remote" |
| Admissibility of psychiatrist Dr. Choe’s testimony about victim’s symptoms (PTSD, depression, flashbacks) | Testimony was relevant to victim’s credibility and psychological harm; not unduly prejudicial or cumulative | Testimony was cumulative and inflammatory; prejudicial under Rule 403 | Affirmed: Trial court did not abuse discretion; probative value outweighed any prejudice and testimony rebutted defense theory of fabrication |
| Admission of hearsay statement relayed by Dr. Choe (victim blamed her mother), and denial of mistrial after instruction to disregard | State: statement was not relied on later; curative instruction sufficed | Statement was highly prejudicial and required mistrial because it implicated ultimate issue and could not be cured | Affirmed: Court sustained objection, instructed jury to disregard, and denial of mistrial was not an abuse of discretion; prejudice was curable |
Key Cases Cited
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (unanimity requirement and single incident rule)
- Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.) (jury must agree on discrete incident)
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App.) (disjunctive offenses and unanimity instruction requirement)
- Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App.) (standard for harm review when charge error not objected to)
- Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App.) (egregious-harm review factors for charge error)
- Gonzalez v. State, 455 S.W.3d 198 (Tex. App.) (standard of review for evidentiary rulings and Rule 403 analysis)
- Briones v. State, 12 S.W.3d 126 (Tex. App.) (cumulative evidence not automatically excluded)
- State v. Boyd, 202 S.W.3d 393 (Tex. App.) (curative instruction ordinarily cures admission of improper evidence)
- Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App.) (mistrial review standard)
- Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App.) (mistrial required only in extreme, incurable prejudice cases)