Gregory Lamar YOUNG, Appellant, v. The STATE of Texas, Appellee.
No. 06-11-00166-CR.
Court of Appeals of Texas, Texarkana.
Decided: Oct. 16, 2012.
417 S.W.3d 417
Submitted: Sept. 26, 2012.
Given the detailed nature of the pleadings and the extensive litigation, due process demanded more notice than merely citing the statute violated. The Board alleged Barton failed to notify or involve the parents; an allegation refuted by evidence showing that the parents were provided with oral notice. The Board now argues the evidence of oral notice can be used to support a finding of failure to provide written notice. It was fundamentally unfair to plead and try the total failure to notify or involve the parents, which was successfully refuted, and then use Barton‘s evidencе of oral notice to help prove lack of written notice, which had not been alleged. While the Board may not have been required to allege how Section 300.503 was violated, once the Board alleged how Section 300.503 was violated, it was bound by that allegation. Under the facts of this case, it was fundamentally unfair to sanction Barton based on an unpled method of violating Section 300.503.
Although administrative proceedings are not governed by the fair notice pleаding standard applicable to civil cases, pleadings in administrative proceedings must comply with the minimum standards of procedural due process. The minimum standards of due process demanded, once the Board made a specific allegation of how Section 300.503 was violated, for Barton to be afforded notice of any different specific allegation of how Section 300.503 was violated. Under the facts of this case, the Board‘s pleadings were insufficient. Barton cannot be sanctioned for a violation that was neither pled nor tried. Procedural due process demands the sanction be vacated.
We reverse the decision of the district court and vacate the Board‘s sanction of a noninscribed reprimand issued June 18, 2010.
intention to relinquish it (which can be inferred from conduct).” Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App.-Texarkana 1992, writ denied).
Clint Allen, Dist. Atty., Linden, TX, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Opinion by Justice CARTER.
Gregory Lamar Young was found guilty of two counts of sexual assault of a child, engaging in organized criminal activity, and aggravated sexual assault. He was sentenced to life in prison on each count, with counts one and three to be served concurrently and the remaining counts to be served consecutively.1
The primary issue is whether the trial court‘s improper instruction to the jury, to find that the complainant was a “virgin” prior to the date of the offense, given orally during the trial without objection, can be reviewed by an appellate court for hаrmfulness.
I. Factual Background
On or about January 28, 2010, in Atlanta, Texas, Wilton Haynes drove Young and Cedric Clay to an apartment complex where he picked up three teenaged girls, Amy, Sherry, and Marie.2 Sherry and Marie alleged that they were subsequently driven to several different houses, where they were sexually assaulted and forced to ingest cocaine. A few days later, Marie made an outcry to her parents, and after an investigation, these charges were filed.
The three girls were at a friend‘s home at the Holly Hills Apartments in Atlanta, Texas. They left the apartments and were picked up by Haynes (a/k/a Butch). Clay (a/k/a C.B.) and Young (a/k/a Solo) were also in Haynes’ car. Neither Marie nor Sherry knew the men, but Marie was comfortable getting into the car because she trusted Amy, who knew Clay and Young.
At James’ house, Sherry, Marie, Amy, Young, and Clay went into the back bedroom. Both Sherry and Marie claim that Clay forced them to inhale sevеral lines of cocaine. Marie said that Clay told her he would beat Amy if she refused. The girls admitted that the cocaine intoxicated them and made them dizzy and light-headed.
Everyone left the bedroom except for Sherry and Young. Sherry testified that Young sexually assaulted her. She remembers Young threatening her and her family should she ever tell anyone about what happened. Sherry testified that she saw a gun in a corner with a blanket over it, and Young looked at it. Marie remembered Sherry being in the room with Young for over an hour.
Marie testified that Young supplied the cocaine and they consumed it in the back bedroom. Marie also testified that after Sherry left the bedroom, Clay sexually assaulted her and threatened to come after her and her family if she ever said any-
Clay had taken Sherry and Amy outside, where another car was waiting. There is disputed testimony regarding whether Amy, Sherry, or both girls went back into the house to get Marie. Amy testified that when she went back in to get Marie, she saw Marie and Young in the bedroom. Amy saw that Marie had her shirt off, but her pants and bra on, and Young had his underwear on.
Outside the house, the other two girls and Clay were waiting in Corvell Anderson‘s car when Marie joined them. Anderson drove them to the home of Tony Hill (a/k/a Thriller). Sherry and Amy went to the living room, while Marie and Clay went to the bedroom. At Hill‘s house, Marie testified that Clay sexually assaulted her, that Clay forced her to perform oral sex on Hill, and that Anderson also sexually assaulted her. Sherry testified that Clay forced her to perform oral sex on him and Anderson.
While they were all at Hill‘s house, Amy remembered Clay telling her that “[Marie] want to trick, so she don‘t want you to think nothing different of her, and then I told him, do what you got to do.” Amy knew this meant selling sex for money. Amy and Sherry stayed at Hill‘s house while Marie, Clay, and Anderson got back into Anderson‘s car and drove Marie to several other houses, where, Marie testified, several different men paid Clay and sexually assaulted her. In between these trips, Marie was taken back to Hill‘s house a couple of times, where she was sexually assaulted by Clay, Hill, and Anderson, as well as made to use more cocaine.
Young was at one of the houses where Anderson and Clay had driven Marie. Marie testified that Young took her into a bedroom and sexually assaulted her. While at that house, two unidentified men also sexually assaulted her.
Sherry confirmed that she was at Hill‘s house for a couple of hours. She remembers Clay and Anderson leaving with Marie a couple of times.
After Marie was brought back to Hill‘s house for the second (and last) time, Anderson saw that the other two girls were asleep on the couch. Anderson said Clay talked to Marie for a few minutes, then he (Anderson) went into the back room with Marie and sexually assaulted her. After assaulting Marie, Anderson woke up Sherry and Amy and drove all three girls to a place on Main Street, called Dixie Maid, where the girls told him to stop, and they walked back to Marie‘s home.
Anderson testified that he initially picked the girls up with the purpose of having sex and snorting cocaine. He confirmed that he snorted cocaine a few times that night and that he had oral sex аnd vaginal sex with Marie at Hill‘s house. He said Marie voluntarily disrobed for him and asked him what he wanted to do. Anderson also confirmed that he drove Clay and Marie to three houses that night (including Hill‘s) and he supposed, though he was not explicitly told, that Clay paid him “with cocaine and the girls,” as Clay would normally have given him a few dollars for the transportation. He did not remember Clay and Hill going into a room with Marie.
A few days later, Marie told her parents about these events. An investigation ensued, statements were taken from the girls
At trial, Amy called Young her cousin and testified that she had known Young her whole life. Amy was also “close friends” with Clay and, at the time of the events, considered herself to be dating the twenty-eight-year-old man. In her initial statements to the police, Amy left out the fact that Clay was present during these events. At trial, she testified that she never saw either Sherry or Marie upset or crying and that on their walk home, the girls were in a good mood, though a “little bit” intoxicated.
II. Legal Sufficiency
In his first two points of error, Young argues that there is legally insufficient evidence to support the jury‘s verdicts and that the evidence is legally insufficient to establish his identity. Young‘s arguments for these points of error, in their entirety, are:
Appellant submits that the alleged victims, [Sherry and Marie], were intoxiсated on the occasion in question such that their recollections and testing were irreparably tainted, and that a rational juror could not have found that Appellant committed the sex offenses.
....
Appellant submits that the testimony and observations of [Marie] and [Sherry] that Appellant committed sex offenses were based on intoxicated, impaired observations and recollections which were insufficient to establish the identity of Appellant.
Here, Sherry and Marie bоth testified that they consumed several lines of cocaine throughout the night in question. Though the girls said the cocaine caused them to have slurred speech, light-headedness, and numb extremities, they also testified that they were aware of what was happening to them and that they remembered the people around them, the places they went, and when the events happened. Both also testified that Young sexually assaulted them, and they identified Young, in the courtroom, as the mаn who assaulted them. Marie also testified that Young and Clay took her and Sherry to James’ house, where Clay sexually assaulted her.
Young contends that the evidence of identity and guilt is legally insufficient only because Sherry and Marie were intoxicated at the time the alleged events occurred, and therefore, their testimony was “irreparably tainted.” Young‘s sole challenge is based upon the two witnesses’ alleged lack of credibility, rather than a true challenge to the sufficiency of the evidence. The evidence, previously recited, is ample to support the jury‘s findings.
The credibility of witnesses is the sole province of the jury, and we “must give deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.‘” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. State, 443 U.S. 307, 318-19 (1979)); see Ehrhardt v. State, 334 S.W.3d 849, 857 (Tex. App.-Texarkana 2011, pet. ref‘d). Here, the jury was entitled to believe the testimony of Sherry and Marie that Young sexually аssaulted them. The jury could have reasonably inferred that Young acted in concert with Clay and James by taking Marie to James’ house, where Clay sexually assaulted her in one of James’ rooms. The jury was free to reject all testimony and inferences to the
III. Limitation of Cross-Examination of the Sexual Assault Nurse Examiner
In his third point of error, Young contends that the trial court erred in limiting his cross-examination of Lach, the sexual assаult nurse examiner who examined both Sherry and Marie.
We review a trial court‘s decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Brown v. State, 189 S.W.3d 382, 385 (Tex. App.-Texarkana 2006, pet. ref‘d). A trial court abuses its discretion only when its decision is clearly wrong and lies outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992).
On direct examination, Lach testified that she did not find any signs of trauma on either Marie or Sherry, but that Marie‘s hymen had two well-healed notches on it.4 Lach further stаted that such finding was consistent with the history Marie had given to her. During Young‘s cross-examination of Lach, the following exchange took place:
Q Ms. Lach, is it true that what you‘re telling the jury is that your physical examination of these children, [Sherry] and [Marie], revealed no sexual trauma?
A The examination of [Marie], there was trauma to her hymen, and that could be consistent with sexual trauma.
Q Could it also be consistent with consensual sexual activity?
A It could be.
Q And that would be the notches that you spoke of earlier?
A That could be.
Q Is there any way to date the notches as to when it happened?
A No, there‘s not.
Q So those notches could have occurred from sexual activity, consensual sexual activity, years ago.
[THE STATE]: Your Honor, I object.
THE COURT: I‘ll sustain the objection. Counsel, approach, please.
The State did not make a specific objection, and the trial court did not specifically state the grounds upon which it sustained the State‘s objection. But through a discussion at the bench and at a later hearing outside the presence of the jury, it is apparent that the trial court sustained the objection because it found that Young‘s question related to the victim‘s prior sexual activity and was therefore inadmissible under
At trial, Young argued that he “was merely attempting to question Ms. Lach about she couldn‘t relate what she saw as far as the notches go and equate that with sexual trauma. Or sexual assault.” At the conclusion of the in camera hearing, Young stated,
[M]y intent was to close the [cross] examination “by saying the only evidence that she secured about sexual assault was the patient history. In other words, the oral patient history, not the physical examination ... that the only evidence she had of sexuаl assault was the oral patient history.”
On appeal, Young contends that the trial court erred in limiting his cross-examination because he was “entitled to question an expert witness about information of which she is aware but upon which she did not rely, here, Kathy Lach‘s opinion as to the causation and timing of the notches” in Marie‘s hymen.5
Whether this question violated
IV. Jury Instruction
A. Comment on the Evidence
In response to the exchange and instruction to disregard detailed above, the trial court halted Young‘s cross-examination of Lach and held an in camera hearing under
1. Preservation
Young argues that the trial court‘s instruction was a comment on the evidence. Generally, a claim that the trial court erred by commenting on the weight of the evidence during trial or while ruling on evidentiary matters must be preserved by objection before the appellate court may consider it. Woods v. State, 569 S.W.2d 901 (Tex. Crim. App. 1978); Morgan v. State, 365 S.W.3d 706, 710 (Tex. App.-Texarkana 2012, no pet.). Here, Young failed to object to the instruction, and therefore he failed to preserve the issue for our review.
2. Opportunity to Inspect and Object
Young also contends that the trial court failed to advise the parties of the instruction for prior review and that he was not given a chance to object to the instruction. Under
The record shows that Young had ample notice of the court‘s instruction and had sеveral opportunities to object. During the Rule 412 hearing, the trial court informed the parties that it was inclined to instruct the jury to find that “both of these girls were virgins before this happened.” After the Rule 412 hearing, with the defendant present, but the jury absent, the trial court informed the parties that it would instruct the jury to find that “[Marie] was a virgin prior to [January] 28, 2010.” The jury was brought in and the court gave that very instruction. Young failed to object to the instruction at any time, despite opportunities to do so. We find that Young was givеn adequate prior notice of the instruction and several chances to raise an objection thereto.
B. Jury Charge Error
Young also contends that the trial court‘s instruction is a jury charge error, and therefore does not have to be preserved by objection.8 Even without an objection, if the instruction is considered as a part of the jury charge, it is reviewable under Almanza, and if erroneous, the case will be reversed upon a finding that the error led to egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh‘g).
The Texas Court of Criminal Appeals has declined to extend Almanza beyond the context of the jury charge.
Here, the instruction was oral and given to the jury during the second day of a four-day trial; there is no record that the instruction was ever plaсed in writing or physically delivered to the jury. The trial court directly instructed the jury to “find” that a fact was established when there had been no evidence offered to establish the fact. Our law provides that a trial judge must refrain from making any remark calculated to convey to the jury his or her opinion of the case. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003).
Further, the Texas Code of Criminal Procedure prohibits a trial court from making a statement which comments on the weight of the evidence both in the jury charge, see
Finally, the judge is to instruct the jury in matters of law; the jury is to decide the facts. Daniell, 848 S.W.2d at 147 (“Article 36.14 does not authorize the judge to give instructions with regard to factual matters, but only as to the applicable law.“). This instruction patently violates that mandate. For all these reasons, the trial court committed error in giving this instruction.
The trial court reasoned that its instruction was necessary because a violation of
Even so, our jurisprudence requires that an objection must be lodged to trial errors.9 The Texas Court of Criminal Appeals has stated that the Almanza exception applies only to the jury charge. Fuentes, 991 S.W.2d at 276. This instruction, given orally on the second day of a four-day trial, is a trial error, rather than a jury charge error. Regardless of the impropriety of the instruction, in this context, Young was required to object to preserve this issue for appellate review. Many times during a trial, the trial court is required to directly instruct a jury on vari-
We affirm the judgment.
Mervyn Lopez ALDABA, Appellant, v. The STATE of Texas, Appellee.
No. 14-08-00417-CR.
Court of Appeals of Texas, Houston (14th Dist.).
April 16, 2009.
2009 WL 1057630
Discretionary Review Refused Aug. 19, 2009.