Roy Rodgers v. State, 2014 Tex. App. LEXIS 5594

Background

Roy Rodgers (defendant) was tried for continuous sexual abuse of a young child; victim J.H., age 11 at trial, reported multiple incidents spanning late 3rd grade through summer before 5th grade.
J.H. disclosed abuse to his mother on Aug. 16, 2011; he was interviewed at the Dallas Children’s Advocacy Center the next morning by forensic interviewer Jessenia Gonzalez.
At guilt/innocence, the jury returned a written guilty verdict on a lesser-included offense (indecency with a child by complainant contact) and the verdict was read in open court with no immediate dissents.
During the punishment phase, the bailiff informed the court the foreman had signed the wrong verdict form; the foreman and each juror (on polling) then confirmed the jury intended to convict of continuous sexual abuse as charged.
Defense objected to allowing the jury to correct the verdict after punishment had begun; the court overruled, polled the jury, instructed on punishment for continuous sexual abuse, and the jury assessed 70 years’ imprisonment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court could allow the jury to correct its guilty verdict after it had been read and punishment had begun	State: court may correct a written jury mistake when jurors consent and have not dispersed; verdict not final until punishment complete	Rodgers: once guilty verdict read in open court with no dissents, it could not be changed or revisited after punishment began; doing so violated bifurcated process	Court: No error — jury had not been discharged, foreman reported a written mistake, jurors on poll confirmed intended verdict; correcting the form was permissible
Whether a forensic interviewer may be the outcry witness under art. 38.072	State: J.H.’s first detailed disclosure describing multiple incidents was to the forensic interviewer, satisfying the statute’s requirement of a first person who heard a statement that describes the offense	Rodgers: the proper outcry witness should have been J.H.’s mother, who heard earlier general allusions	Court: No abuse of discretion — mother heard only general allusions; forensic interviewer received the first discernable statement describing the alleged continuous abuse
Whether the record supports assessment of $239 in court costs	State: clerk’s record contains a bill of costs; supplemental record issues previously litigated and resolved	Rodgers: no written bill of costs in clerk’s record as required by art. 103.001	Court: No error — bill of costs present; challenges to supplemental record rejected in precedent

Key Cases Cited

Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979) (trial court has no power to change jury verdict absent jurors’ consent before dispersal)
Reese v. State, 773 S.W.2d 314 (Tex. Crim. App. 1989) (no error sending jury back for further deliberations to resolve verdict form issues)
Jones v. State, 511 S.W.2d 514 (Tex. Crim. App. 1974) (permitting return to correct variance between written verdict and poll responses)
Webber v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983) (jurors dismissed but not separated may correct verdict after court becomes aware of problem)
West v. State, 340 S.W.2d 813 (Tex. Crim. App. 1960) (similar principle regarding juror correction when jurors remain present)
Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) (standard of review and definition for outcry witness under art. 38.072)
Brown v. State, 381 S.W.3d 565 (Tex. App.—Eastland 2012) (forensic interviewer may be proper outcry witness when prior statements to others are only general allusions)
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (addressing challenges to bills of costs and supplemental records)
Coronel v. State, 416 S.W.3d 550 (Tex. App.—Dallas 2013) (same)
Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) (discussion of bifurcated trial purpose and punishment-phase evidence)
Sims v. State, 273 S.W.3d 291 (Tex. Crim. App. 2008) (punishment-phase relevance broader than guilt phase)