Lewis v. State

accorded a trial on prior both the indict- subsequent or, ment and the accusation run, sixty days having deny- order ing bail automatically has been set aside. Abilene, Kennedy, John W. appellant. way, Either the issue is now moot and the Solis, Jorge appeal A. Atty. Dist. and James M. must be dismissed.1 Eidson, Abilene, Atty., Asst. Dist. Robert It is so ordered. Huttash, Austin, Atty., State’s for the State.

OPINION

PER CURIAM. appeal This is an denying from an order LEWIS, Appellant, James Calvin § pursuant I, bail to Article 11a of the Constitution of Appel- the State of Texas. Texas, Appellee. STATE 3, lant was arrested on June 1984 and charged with the burglary offense of of a No. 61127. building. 4, On June 1984the State filed a Court of Criminal Appeals of Texas bail, motion to hold alleg- without Panel No. 2. ing that at the time of the commission of already said offense on bond 18, July 1984. prior felony, for a burglary to wit: of a Rehearing 10, Denied Oct. 1984. building, 10, February 1984, committed on for which he was currently under indict-

ment. A hearing 7, was conducted on June

1984, after which the district court ordered appellant’s “bond” be denied. Notice appeal was filed June 15. §I, supra, provides

Article 11a. that a

defendant who has been denied bail under

its upon terms must be accorded a trial pending

accusation and indictment sixty days

within from the time of his upon

incarceration the accusation. Failure comply provision with this will result denying being

the order automatically bail

set aside. sixty day period has ex-

pired. nothing There is in the record be-

fore tous indicate that a continuance has upon

been obtained either the accusation or pending indictment the motion or

request of the accused. We must there-

fore assume either that has been 3, 1. We have reviewed the statement of facts of the offense committed on June while and, hearing of June nevertheless but for our prior was under indictment and on bail for a disposition appeal ground of this on the felony. question, Had we reached this mootness, would be inclined to conclude that uphold would have been constrained to the or- the state satisfied its burden to make a “substan- denying der of the district court bail. showing" guilt tial ONION, P.J., Before DAVIS W.C. TEAGUE, JJ. OPINION DAVIS, Judge. W.C. was convicted

indecency child, with a a violation of V.T. Code, 21.11(a)(1). C.A. Penal Sec. punishment court assessed years’ at ten confinement.1 Appellant contends photo- that various graphs, testimony, magazine and a erroneously admitted into evidence. He alleges also charge that the contains error improper and that jury argument was presented. Roy

Paul Mitchell testified that he met appellant at Christmastime in 1976 at a restaurant in Garland. The two men dis- they covered that had a in mutual interest photography. chatting After on several photography appellant occasions about told Mitchell that he photographer needed a for pornography child and that Mitchell could probably good money doing make that. Appellant also told Mitchell that if he want- right ed to “... it would all right at the girls times to you, touch the and what have to oil their skins down so would shine good photographing.” Appellant gave for magazine containing photo- Mitchell a both female, graphs appears of a nude who old, years depicted be about twelve in vari- sexually suggestive poses ous “sto- ry” about the trials and tribulations of an entering puberty. Ap- adolescent female pellant told Mitchell that he had graphed the child in the and had money arranging received for sale of photographs. Department Mitchell contacted the Carlock, Unger Carlyle, David Elizabeth Safety Attorney’s and the District Public Dallas, appellant. for office, showed them the and told Wade, Henry Atty. appellant. Dist. and T. Michael them about Mitchell was ad- Sutton, Wilson, gather Joe Revesz and Mike Asst. vised to work with Dallas, Huttash, Attys., Dist. he could without violat- Robert whatever evidence Austin, Atty., ing State’s for the the law himself. State. punishment by

1. At the time was convicted of- the maximum law at authorized third-degree felony. years fense awas Ten that time. already cumulative evidence of facts agreed to allow to use Mitchell disagree. photograph people. known. We Mitchell’s studio to photographs, Mitchell and took “knowingly Appellant was indicted for ap- developed pictures and Mitchell intentionally engagpng] in sexual con- pellant. complainant ... tact with ... complainant with the complainant’s genitals Appellant persuaded the sexual mother, to arouse and he had met about three intent whom Defendant, earlier, might ...” order years complainant desire of ongoing modeling appel- place and that the offense context have a career complain- appellant and the get then twelve interaction of lant could points old, As the State modeling into school. He also ant must be shown. years out, had been photograph her that he would like to “The fact told complainant every time she advertising ‘touching’ for use in his during nude sign lighting photographed The mother was business. span agreed photograph month or month and one-half time to allow offense, inter- complainant; appellant photographed prior to the instant was so the to complainant, taking “fam- connected with the instant offense as be both mother and Later, taking initially. inseperable the We hold that the ily” pictures when [sic].” pictures photographs complainant the of the com- present mother was not he took in to depicting par- pletely partially or the nude amounted the some her nude, State, completely transaction. Bush v. tially some so. one indivisible 1982); (Tex.Cr.App. 441 628 S.W.2d Hoffert complainant The testified that on each State, (Tex.Cr.App. 141 v. 623 S.W.2d photographed occasion that she was in the State, 1981); Archer v. 607 S.W.2d 539 appellant nude touched her breasts 1980). photographs The are (Tex.Cr.App. genitals. He told her that he did so in in the admissible to show the context which complainant, ap- order to relax her. The offense occurred. parently believing this action was neces- model, sary conjunction showing in order to a successful In with the context become occurred, object did and did not tell her mother. in which the offense we note also appellant photographs him are so Mitchell testified that told that such admissible gotten good appel- can determine whether jury that “he had some that a her, type gratify to sexual graphs, the he wanted from but lant had the intent his complainant. the opportunity physi- he also used the there to desire when he touched surrounding must cally private touch her areas.” Mitchell The circumstances be put per- in appellant also testified that told him that shown in order to the offense in case complainant’s spective. he touched the breast and The intent element this finger penetrate genital only proved by had used his her can inferences from 6, 1977, July alleged presented. photographs in The are area. On the date evidence indictment, helping to determine appellant again once relevant intent to arouse complainant. had the touched the However whether he gratify his sexual desires when presence time he so in the of Mitchell’s or did complainant during photog- wife, taking photographs touched the who was State, 617 police ap- raphy sessions. McKenzie v. him. The Mitchells notified 1981); (Tex.Cr.App. 211 Bowles v. charged and S.W.2d pellant was arrested. State, 550 S.W.2d through grounds In of error four Furthermore, evidence is admissible appellant complains of the ad twenty-one probability either the de if it establishes photographs, mission of most of which the offense or that stages committed complainant in the accused pict the various attention, displayed an pho paid he unnatural undress. contends victim, or irrelevant, toward the too re unnatural attitude tographs prejudicial, are the victim. alleged, and had lascivious intent toward in time from the offense mote State, (Tex.Cr. v. 573 S.W.2d 12 In involving Garcia a case either direct or 1978); App. circumstantial Johnston evidence the extraneous 1967). (Tex.Cr.App. photographs, The transaction must be relevant to a material time, Williams, period supra. argues taken issue. beginning over with The State “family” pictures ges- that the evidence is “res type complain of the admissible as offense, tae” or context of the “advancing” ant and her mother and to show the relationship parties, photographs complainant nude and to show the alone, help inducement offered to Mitchell. We do not appellant’s to demonstrate atti agree concerning tude and the evidence complainant. intent toward the magazine necessary is to show the context Finally, was free to of the offense. It is not needed to show describe what occurred when Mitchell’s involvement with be photographed photo her and what particular cause of the offense with which Thus, graphs represented. general charged. applies photograph rule is admissible not the inducement to convince Mitchell to if description a verbal of what is help appellant. “excep None of the State’s depicted photograph in the is also admissi general tions” to the inadmissibility of ex (Tex. ble. Harris v. traneous maga transactions show how the 1983). Cr.App. zine is relevant material issue properly admitted. light allegation case in the indict grounds of error are overruled. charges appellant ment. The indictment engaging in grounds with sexual contact "... with several of error the intent to arouse and contends that the sexual admission of the containing pictures (Emphasis desire of the add young girl of a in vari- Defendant.” ed) magazine testimony pertain and stages testimony per- ous and undress ing taining appellant to it do little to show that had magazine to the was harmful error. gratify the intent to his own sexual desires. previously, appellant gave As recited magazine any The relevance of such ma to Mitchell and told him he evidence had case, any, terial issue in the if is minimal. photographs taken the of the child in the Appellant’s past activities in the field of magazine money and received for the sale photography plans and his future not pictures. Appellant of the objected to the any related to issue in the case. If the magazine testimony introduction of the and charged appellant State had with intent to pertaining magazine claiming to the it was gratify arouse or the sexual desire of prejudicial. Appellant irrelevant and con- person pertaining mag to the evidence tends that this evidence of an extraneous might azine well have been admissible to act of misconduct should not have been prove such intent. See V.T.C.A. Penal admitted. Code, 21.01(2) 21.11(a)(1). find Secs. & We The “test” for admission of extrane admitting that the trial court erred is, quoted ous offenses as in Williams v. testimony pertaining to it. State, (Tex.Cr.App. 662 S.W.2d 346 Before discuss the harmfulness of 1983), admitted evidence we will “For transactions extraneous constitut- testimony relating to extrane- discuss other ing offenses shown to have commit- been appellant alleg- ous transactions which also omitted) (note may ted the accused improperly es was admitted. showing by become admissible twenty-four error prosecution both that the transaction Grounds of allege through thirty-seven issue in the error the ad is relevant to a material case; and, testimony concerning relevancy the mission of Mitchell’s value of appellant made to outweighs inflammatory its or various statements (citations omitted) split potential.” Mitchell. The statements can be into prejudicial original). categories: three some of the statements (emphasis in possibility there is a reasonable concern above-mentioned previously improperly might for the reasons stated should admitted evidence have admitted; not have been several other contributed to the conviction. Prior v. things appellant statements relate to told State, (Tex.Cr.App.1983); pho- Mitchell when he asked him to be his (Tex. Vanderbilt tographer pornography, for child and also Cr.App.1981); Esquivel v. appellant made to Mitchell statements that S.W.2d 516 to the effect that had touched was the instant case complainant. asking made statements twenty properly than admitted shown more photograph- Mitchell with him as to work complainant in various pornography er for child are admissible poses partially completely nude. Mitch order to show the circumstances of the him appellant approached ell testified that how the scheme was offense and whole photography initiated the entire by appellant. initiated The statements Appellant scheme. also told Mitchell that complainant are admis- about gotten only good photo had he some proba- sible because are relevant and graphs but that he had appellant’s intent to tive on the issue of opportunity physically also used the gratify his sexual desires. evi- own Since private penetrate dence of that intent must be inferred from touch her areas and her circumstances, statements, vagina and conduct finger. with his important the statements are testified that to the material issue of intent. These genitals every had touched her breasts and statements do not concern extraneous photographed time he her she when was properly transactions and were admitted. nude. Finally, group the third of statements com- testify. did not The defense prise those statements that made counsel called in an several witnesses at- concerning to Mitchell past and future sale tempt to show that Mitchell not as was pictures. of such Because innocently only involved as he said. The charged gratify with “intent to arouse and explain appellant’s evidence offered to con- Defendant,” the sexual desire of the complainant’s duct testimony.that not with “intent to arouse or he told her that he her was to any person” sexual desire of such state- addition, relax her. In the court submitted ments are not admissible. The statements (1) appellant’s requested charges pos- that probative are gratification appel- not of of magazine previously session of the dis- They lant’s sexual desires. would be ad- law; cussed is not offense an under Texas to the issue of missible intent to (2) taking photographs and of nude of a any person, sexual desires of but child is not an offense under Texas law. charged not was with that intent. These prejudicial impact The of the evidence was should statements not have been admitted. mitigated by charge. thus the court’s We turn now to the harmfulness of whole, viewing In the evidence as a the admission of the and the say possi- there is cannot that a reasonable concerning future past statements bility that the admission of the photographs. sales of The determination and the statements as to sales of whether the introduction of extraneous graphs might have to the con- contributed are harmful on transactions must be based impact prejudicial viction. The evi- the merits of the individual case. Ruiz v. by substantiality tempered dence is appellant’s guilt. We conclude evidence of impact This court must determine the average jury’ “that the ‘minds of an would improperly admitted on “the signifi- the State’s case average jury,” minds of an not have found Schneble v. 427, 1056, Florida, cantly persuasive less ...” had the evi- 405 U.S. 92 S.Ct. (1972), at issue excluded. See L.Ed.2d 340 to determine whether dence now been Vanderbilt, brain, supra at destroy your Schneble v. want to to inflame Florida, added) minds, supra. (Emphasis your impossible to make it you just to a right make decision punishment The court assessed in this decision, hard and a hard decision—a conclude ad- case. We that the erroneous they your thought process don’t want did mission the extraneous transactions clear, doubt, to be that is reasonable finding guilt to the not contribute they really anything don’t want to do therefore was harmless. with the Mitchells and the Starks ei- Appellant also contends that ther. ... actions District At- objection court overruled his to office, torney’s Department of Public prosecutor’s argument jury: to the Safety are reasonable doubt. Jury, puts Members of the the law a The State contends that defense counsel duty prosecutor] on Mr. Revesz and I [a terms, argued jury, to the in no uncertain law, says and this is the the law that a prosecutors seeking that the were not prosecutor’s job merely to is convict truth; stinks;” they that “their case knew justice to see that is done. That is but essence, prosecutors that the were rail- Now, says. what the law that man is appellant. The roading State maintains duty— under no such argument reply at- that the was a to this argument contends that this de- argu- tack them. The State claims its impartial nied him a fair and trial. essentially seeking ment that are was responds argument .State justice duty and indeed have a under the proper reply a was invited and was to Rather, justice. it law to seek is defense argument by earlier defense counsel: seeking justice counsel who is not and he you ... some of on criminal have been duty By stating that has no to do so. before, juries you have ever been duty defense counsel is under no such prosecutor didn’t call a case where prosecutor answering defense coun- was agent? They law enforcement didn’t in by saying that since de- sel’s accusations They this didn’t want case.... per- fense counsel does not take the oath good agent good out here because the prosecutor haps it is he and not the who agent knew that this was a fabrication of justice in this case. does not want done Mitchell, photography Mr. and Mrs. Appellant cites Lewis v. expert, develop- the man that did all support (Tex.Cr.App.1975) as work, ing, it it was Mitchell that did position. prosecutor for his Lewis opportunity he that had the assi- he taken an oath and told the has milate these and do what he on either that “No such oath bears one wanted to with them and it was he that attorneys these [defense counsel].” trying put Lewis in the James objection court sustained the defendant’s penitentiary, is reasonable prosecutor this statement contin- but doubt_ against Mr. Mitch- case ued, right. you I ask to “All would believe that he fon- against Mr. Lewis was ell— dled a child and If, assuming guilty, this: this man is do they got prove have to the truth in they want [defense counsel] really first and under the that evidence you?” here The court noted that before it, might put they law that is have the prosecutor’s argument the effect of “[t]he in, sup- photographs that evidence these only prose- the was to instruct the 5th, they posedly July taken on did uphold justice, truth and cutors seek to No, up January to they do that? backed a license to defense counsel have whereas magazine, which is of 1977 when this to mislead use means at their command perfectly legal, put in all of the jury.” the inbetween, (sic) you know argument the We stated in Lewis that

why? they Because know their case being prejudicial in the of its was absence high heaven and don’t stinks to by rioted that They invited defense counsel. We the truth here. want to search for

143 State, argument only portion part in Bray made v. 478 a of the definitional of charge appellant complains. Ap- (Tex.Cr.App.1972) similarly 89 of which S.W.2d trial. pellant objected to the definition at prejudicial argument there was because agree also not We with the State invited. charging prac Although the better argument defense in the counsel’s paragraphs tice is to limit the definitional present reply. case invited the State’s to portions applicable to the of the statute argument by prosecutor When indictment, allegations in the it is not response prior and was made in to invited defini reversible error to include entire statements of defense counsel no reversible State, 642 799 tions. Boston v. S.W.2d State, error is shown. Stone v. 583 S.W.2d State, Toler v. 546 (Tex.Cr.App.1982); State, (Tex.Cr.App.1979); Jones v. (Tex.Cr.App.1977). Appellant’s S.W.2d 290 (Tex.Cr.App.1975); v. Hurd ground judg of error is overruled. The 513 S.W.2d 936 ment is affirmed. if reply Even the State’s that the defense TEAGUE, dissenting. Judge, duty” counsel “is under no such went be- Lewis, appellant, James Calvin was con- yond by the bounds invited defense counsel “knowingly intentionally victed of en- conclude, light cannot of the record L.S., gag[ing] in sexual contact with herein- whole, improper as a that the one line was styled after a female [the] prejudicial so as to call for reversal. The (17) younger child then than seventeen ground of error is overruled. years age] spouse and not then the of [of Appellant alleges that the trial court Defendant, genitals of overruling objection erred in his to the defi- with to the intent arouse portion charge. charge nitional the sexual desire the De- defined “sexual contact” in the words [Emphasis The record added]. fendant.” statute effect at the time2: complaining the female reflects that wit- years age Appellant ness was twelve when the objected to this defini allegedly offense was committed. tion because it refers “sexual desire any person” charged and the indictment majority Because of the reasons the the “sexual desire of the Defendant.” gives opinion, in its also see Williams (Tex.Cr.App.1984),I application paragraph charge agree that the trial court erred when it allegations tracked the in the indictment. testimony admitted into evidence which re- paragraph The definitional tracked the telling person lated to another defining statute “sexual contact.” That past plans efforts and future about his definition was broader than the indictment publi- photograph children the nude for allegations application paragraph in- agree I also cation and sale. with structions, which limited the “the intent to majority’s holding that the trial court fur- person” Defendant” rather “any than to it admitted into a ther erred when the statute which uses. claims nude which contained charge authorized a conviction appears to a female graphs of what upon theory alleged in the indictment approximately years age, who was Every and constitutes error. reversible complainant. other than the by appellant case cited “funda- contains application mental error” because the Notwithstanding my agreement with the paragraph above, authorized conviction I am majority on the unable alleged theory not in the indictment. This agree that there is not a with its conclusion present case does not “fundamental error” possibility reasonable application paragraph because the and the either to the admitted evidence contributed jury’s finding appellant guilty indictment are the same. Lewis v. or the trial punishment. It is court’s assessment of Code, 21.01(2) person 2. V.T.C.A.Penal Sec. another years gratify or the breast of a female or older with the intent to arouse The term “sexual contact" means touch- any person. ing genitals the sexual desire of any part anus or course, the actual effect on the Of prosecutor’s demonstrating to it of opprobious part conduct on the

such However, never known. will question is not what actual effect the but, jury,

inadmissible evidence had on the

instead, there a reasonable is whether is

possibility admitted jury finding

evidence contributed to the

appellant guilty. the nature of the Given

offense, conjunction with the inadmissi- evidence, I am unable to state that

ble possibility is not a

there reasonable inadmissible evidence did not contribute jury’s guilty. verdict

I also find that the errors carried over punishment

the assessment of the trial

judge. regard, In this I do not believe it is

humanly possible to state that there is not possibility

a reasonable that the erroneous-

ly admitted evidence did not contribute to judge assessing appellant’s punish-

the trial (10) years’

ment at seventeen confinement penitentiary; especially

in the is this so and finds

when one examines the record shown to have ever was not any type

had of criminal record. judg- errors not harmless. The

ment of conviction should be reversed and

not affirmed.

I dissent. SUPPLY

MID-CONTINENT COMPANY, Appellant, CLEMENTS, Appellee.

Mark A.

No. 12-84-0052-CV. Texas, Appeals of

Court

Tyler.

3,May 1984. Nix, Nix, Longview, Fred L. Patton & Dismissed for Want of Jurisdiction Sept. 1984. appellee. for Clements,

Mark A. Patterson, Rod Can- tey, Hanger, Gooch, Collins, Munn & Fort Worth, appellant.

Case Details

Case Name: Lewis v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 18, 1984

Citation: 676 S.W.2d 136

Docket Number: 61127

Court Abbreviation: Tex. Crim. App.