John Calvin Marshall v. State
12-14-00368-CR
Tex. App.Sep 3, 2015Background
- Victim Carolyn Walters accused John Calvin Marshall of entering her home on April 23, 2011, forcing sexual contact (attempted vaginal penetration) without consent; she did not initially report the assault due to Marshall's community status.
- Police responded after a family friend contacted them; Detective Michael King arrived and later contacted Jean Mullins, a prior alleged victim, who persuaded Walters to speak with police.
- Marshall was arrested April 29, 2011; during booking he made recorded phone calls (to an attorney and his wife) in the presence of Detective King, which he later sought to suppress.
- At trial the State introduced testimony from Jean Mullins about a similar prior sexual-assaultive incident; the court admitted that testimony under Tex. R. Evid. 404(b) to show identity, intent, and absence of mistake.
- Marshall called Martha Wetherholt as a defense witness; the court excluded her testimony under Rules 401, 602, and 412 as irrelevant/improper, and Marshall contended exclusion infringed his right to present a defense.
- Defense argued the encounter with Walters was consensual; during closing the prosecutor made remarks inviting jurors to consider how one would behave when sexually assaulted, which Marshall challenged on appeal.
Issues
| Issue | State's Argument | Marshall's Argument | Held |
|---|---|---|---|
| 1. Denial of motion to suppress recorded phone calls made during booking | Calls were initiated voluntarily by Marshall in officer's presence; not privileged or the product of custodial interrogation under art. 38.22, so admissible | Presence/recording by Detective King infringed Fifth/ Sixth Amendment and statutory protections; suppression required | Trial court did not err — calls were voluntary, no interrogation triggering suppression rules |
| 2. Admission of 404(b) evidence (Jean Mullins) | Mullins's similar prior incident admissible to prove identity, intent, absence of mistake, and to rebut consent defense; probative value > prejudicial | 404(b) evidence improperly introduced character conformity and unfairly prejudiced Marshall | Trial court did not err — admission was within discretion for legitimate non-character purposes |
| 3. Exclusion of Martha Wetherholt testimony | Exclusion proper: testimony lacked personal knowledge, was irrelevant, risked improper character evidence barred by Rule 412; exclusion did not violate right to present a defense | Excluding the testimony prevented Marshall from presenting a defense, raising constitutional error | Trial court did not err — testimony was irrelevant/improper and exclusion did not contribute to verdict |
| 4. Prosecutor's closing argument (inviting jurors to imagine sexual assault) | Argument was a reasonable deduction and summation of evidence to rebut consent theory, not an invitation to assume facts outside record | Argument improperly asked jurors to place themselves in victim’s position and was prejudicial | Argument was proper in context and not reversible error |
Key Cases Cited
- Gomes v. State, 9 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 1999) (discusses when article 38.22 does not apply because statements were not custodial interrogation)
- Corley v. State, 987 S.W.2d 615 (Tex. App.—Austin 1999) (other sexual-offense evidence admissible to prove intent/ rebut consent)
- Faison v. State, 59 S.W.3d 230 (Tex. App.—Tyler 2001) (404(b) may be used to prove identity and rebut defenses)
- Sims v. State, 273 S.W.3d 291 (Tex. Crim. App. 2008) (Rule 404(b) permits extraneous-offense evidence for non-character purposes)
- Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) (abuse-of-discretion standard for evidentiary rulings)