MICHAEL DALE REIGHLEY, APPELLANT V. THE STATE OF TEXAS, APPELLEE
No. 07-18-00171-CR
Court of Appeals Seventh District of Texas at Amarillo
August 13, 2019
Before CAMPBELL and PIRTLE and PARKER, JJ.
On Appeal from the 413th District Court Johnson County, Texas; Trial Court No. F49732, Honorable William C. Bosworth, Presiding
Appellant, Michael Dale Reighley, appeals his convictions for one count of online solicitation of a minor and two counts of criminal solicitation of a minor, and resulting jury-imposed sentences of twenty years’ incarceration and a $10,000 fine for the online solicitation offense and ten years’ incarceration and $10,000 fines for the criminal solicitation offenses. We affirm the trial court‘s judgment.
Factual and Procedural Background
On July 15, 2015, the Texas Attorney General‘s Office conducted a sting operation focusing on online solicitation of minors in Cleburne, Texas. Appellant, who was thirty-seven years old on July 15, 2015, placed an ad in the “personals/casual encounters” section on the Craigslist website. In the ad, appellant stated that he wanted to meet a female who was either “much younger (than 20 years of age)” or “much older (than 50 years of age)” for the purpose of, inter alia, performing oral sex on anyone that responded to his ad. Don Adams, SWAT Commander for the Burleson Police Department, responded to appellant‘s ad using the Craigslist profile of “Brandi Jasper.” In his response, Adams identified Brandi as a fourteen-year-old girl. After a series of messages in which appellant repeatedly propositioned Brandi to engage in sexual acts with him,2 appellant arranged to meet Brandi at a designated location in Burleson. When appellant arrived at the arranged meeting location, he was placed under arrest.
Appellant was subsequently indicted for the solicitation offenses. During appellant‘s trial, police officers testified as to the events described above. In investigating the case, Sheriff Andrew Riggs searched appellant‘s cell phone as authorized by a search warrant. At trial and over appellant‘s objection, Riggs testified to finding a
By his appeal, appellant presents seven issues. Appellant‘s first four issues challenge the trial court‘s exclusion of four witnesses that appellant offered to testify as to their opinion regarding appellant‘s character. Appellant‘s fifth issue contends that the trial court erred by admitting evidence of appellant‘s bad character for the purpose of showing appellant acted in accordance with that character on the occasion in question. Appellant‘s sixth and seventh issues contend that the trial court erred in refusing to find subsection (d)(3) of
Issues One through Four: Exclusion of Good Character Witnesses
Appellant contends, by his first four issues, that the trial court erred in excluding testimony regarding appellant‘s good character during the guilt-innocence phase of trial. In a hearing outside the presence of the jury, appellant initially called Phillip Nottingham. Nottingham testified that he had known appellant since they were both around thirteen years old. They lost touch in early adulthood but had gotten back in touch between five to ten years before trial. After the two reconnected, they were in contact around once a month and often only through phone calls. Nottingham testified that he did not believe that appellant had the traits of a pedophile, never saw or heard appellant speak inappropriately about young girls, and has trusted and does trust appellant to be around Nottingham‘s minor daughters. The State objected to Nottingham‘s testimony on the bases that he was not qualified as an expert and such testimony regarding specific acts of good character is impermissible during the guilt-innocence phase of trial. Appellant responded that he believed that the State had opened the door to this testimony and that it is relevant rebuttal evidence relating to appellant‘s character. The trial court sustained the State‘s objections, specifically indicating that it thought that this testimony was appropriate only for punishment. Upon appellant‘s request, the trial court allowed the testimony to serve as an offer of proof.
Immediately after Nottingham was dismissed, appellant called Dayna Ly, appellant‘s fiancee. Ly testified that, in the two and a half years she had known appellant, she had never seen him act inappropriately or heard him state that he desired to be sexual with young girls. Ly also testified that she believed appellant to be of good character. The State again objected that the testimony was an impermissible attempt to offer specific acts of good character. Appellant responded, again contending that the State had opened the door. The
Finally, appellant prepared to offer the testimony of appellant‘s daughter. However, before he could do so, the trial court asked if this testimony was going to be “basically that same thing, character.” Appellant responded in the affirmative. Before any of the witness‘s testimony was presented, the trial court stated, “But if your line of questioning is the same line of questioning as the last two witnesses, then I‘d reserve her for the . . . Punishment Phase.” Appellant accepted this statement without requesting an opportunity to make an offer of proof.
We review the trial court‘s decision to admit or exclude evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We will not disturb the trial court‘s ruling if the ruling is within the zone of reasonable disagreement. Id.
Generally, character evidence is not admissible to show that a person acted in conformity with that character trait on a particular occasion.
In a prosecution for a crime of violence, the defendant‘s character for peacefulness is relevant because evidence establishing that a defendant possesses a peaceful character makes it less likely that he committed the crime charged. Melgar, 236 S.W.3d at 307. A defendant‘s reputation for peacefulness or non-aggressive behavior is an appropriate inquiry in a murder prosecution. Valdez, 2 S.W.3d at 520. Under
Our sister courts have concluded that the type of evidence offered by appellant in this case is not admissible. In Valdez, the court refused to allow the defendant‘s brother and neighbor to testify that appellant had a good reputation in the community for being “a nonpedophile” because “unlike a person‘s reputation for the moral treatment of children, being a ‘nonpedophile’ is not evidence of a person‘s character or character trait.” Valdez, 2 S.W.3d at 519-20. In Hernandez, the court rejected testimony regarding whether the defendant was the “kind of person” who would molest children because, rather than showing a good character trait, such testimony attempts to show that appellant “was not known to have committed the type of crime for which he was charged in the past.” Hernandez v. State, No. 05-13-00202-CR, 2014 Tex. App. LEXIS 162, at *8-9 (Tex. App.—Dallas Jan. 7, 2014, no pet.) (mem. op., not designated for publication) (quoting Valdez, 2 S.W.3d at 520). In Fernandez, the court upheld the trial court‘s sustaining of the State‘s objections to questions asking whether the defendant had ever touched a different child inappropriately and whether a witness would “be afraid to leave your daughter with” the defendant. Fernandez v. State, No. 14-09-00369-CR, 2010 Tex. App. LEXIS 2628, at *14-18 (Tex. App.—Houston [14th Dist.] Apr. 15, 2010, no pet.) (mem. op., not designated for publication). These cases establish that testimony of a defendant‘s character that is derived from specific instances of conduct is inadmissible to show an inference that the defendant did not commit the offense for which he is charged.
In the present case, appellant sought to elicit testimony from Nottingham that appellant did not exhibit the “traits of being a pedophile,” Nottingham had not seen or heard appellant behave inappropriately toward young girls, and that Nottingham would trust appellant around his daughters. This is the same sort of testimony that was deemed inappropriate in Fernandez and Valdez. See Fernandez, 2010 Tex. App. LEXIS 2628, at *14-18; Valdez, 2 S.W.3d at 520. Appellant then sought to admit testimony from Ly that she had never seen appellant act inappropriately toward young girls and that he had never expressed a desire to be sexual with young girls. This is the same type of testimony that was found to be inappropriate in Hernandez. See Hernandez, 2014 Tex. App. LEXIS 162, at *8-9. Appellant also offered the testimony of Dodd that appellant did not act inappropriately toward her when she was a young girl. This is the same sort of testimony that was determined to be inappropriate in Fernandez. See Fernandez, 2010 Tex. App. LEXIS 2628, at *14-18. Finally, appellant attempted to call his daughter. However, the substance of her testimony was not offered as part of appellant‘s offer of proof and, as such, any error in the trial court‘s exclusion of her testimony was not preserved.3 Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).
Because the testimony of the first three good-character witnesses offered by appellant was improper character evidence derived from specific instances of appellant‘s prior conduct, the trial court did not abuse
Appellant‘s Fifth Issue: Character Conformity Evidence
Appellant‘s fifth issue contends that the trial court erred by admitting evidence of appellant‘s bad character for the purpose of showing appellant acted in accordance with that character on the occasion in question. Specifically, appellant objects to the admission of testimony from Andrew Riggs, an investigator with the Johnson County Sheriff‘s Office, relating that a manual investigation of appellant‘s phone uncovered a text message conversation in which appellant stated that he had previously performed oral sex on a fourteen-year-old girl. Appellant objected and argues on appeal that the testimony violates
As above, the applicable standard of review for the admission or exclusion of evidence is abuse of discretion. Harris v. State, 152 S.W.3d 786, 793 (Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d). This means that we will uphold the trial court‘s ruling so long as it falls within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh‘g). This standard applies in the same manner in the context of the admission or exclusion of extraneous offense evidence and an appellate court “owes no less deference to the trial judge in making this decision than it affords him in making any other relevancy determination.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A court of appeals cannot simply substitute its own decision for the trial court‘s. Id.
Under
- how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable;
- the extraneous offense‘s potential to impress the jury in some irrational but indelible way;
- the trial time that the proponent will require to develop evidence of the extraneous misconduct; and
- the proponent‘s need for the extraneous transaction evidence.
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (quoting Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)).
Appellant argues that none of the
However, a determination that extraneous act evidence is admissible as an exception to
We conclude that the trial court did not abuse its discretion in admitting Riggs‘s testimony over appellant‘s
For the foregoing reasons, we overrule appellant‘s fifth issue.
Issues Six and Seven: Anti-Defensive Provisions
By his sixth and seventh issues, appellant contends that the trial court erred in refusing to find that subsection (d) of
The constitutionality of a statute is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden to show that a statute is unconstitutional is on the party challenging the statute. Id. at 15. When addressing a facial challenge, the challenger must show that the statute operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). In a facial challenge, we are to consider the statute only as it is written and not how it operates in practice. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908-09 (Tex. Crim. App. 2011). It is extremely difficult to prove a facial challenge to the constitutionality of a statute because we are to presume that the law enacted by the legislature is constitutional. Id. at 909.
The offense of online solicitation of a minor at the time applicable to the case against appellant required the State to prove that appellant knowingly solicited, over the internet or by other enumerated electronic means, a minor to meet another, including the actor, with the intent that the minor will engage in some type of sexual contact with the actor or another
In Ex parte Lo, the Court of Criminal Appeals noted that
In a case specifically addressing the anti-defensive provisions found in
“[T]he crime of solicitation of a minor on the internet is complete at the time of the internet solicitation, rather than at some later time if and when the actor actually meets the child.” [Ex parte Lo, 424 S.W.3d at 23.] The crime of soliciting a minor under
section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. Id. The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation.TEX. PENAL CODE ANN. § 33.021(d) . Thus, subsection (d) does not conflict with or negate the intent element of the solicitation-of-a-minor offense defined by (c).
Ex parte Zavala, 421 S.W.3d 227, 232 (Tex. App.—San Antonio 2013, pet. ref‘d).
Likewise, when this Court reviewed the issue raised by appellant, we concluded that the statute is not unconstitutional due to any internal inconsistency. Ex parte Fisher, 481 S.W.3d 414, 421 (Tex. App.—Amarillo 2015, pet. ref‘d). After identifying that Ex parte Wheeler, 478 S.W.3d 89, 96 (Tex. App.—Houston [1st Dist.] 2015, pet. ref‘d), and Ex parte Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at *19-20 (Tex. App.—Beaumont May 21, 2014, pet. ref‘d) (mem. op., not designated for publication), determined that the plain language of the statute leads to the conclusion that the applicable mens rea is focused on the time of the solicitation, this Court agreed with this construction and explained,
We conclude that Wheeler and Victorick are correct in their respective conclusions. We adopt these opinions for two reasons. First, the societal issue being addressed, the solicitation of minors to engage in sexual activity, is an area of significant importance. See Ex parte Lo, 424 S.W.3d at 21 (noting that “[t]here is no question that the State has a right—indeed a solemn duty—to protect young children from the harm that would be inflicted upon them by sexual predators“). Second, when faced with two conflicting constructions of a statute, one of which sustains its validity, we apply the interpretation that sustains that validity. See Ex parte Wheeler,
478 S.W.3d [at 96]. The prohibitions against raising the defenses enumerated in
section 33.021(d) apply only post-solicitation. See id. That is to say, the accused will not be entitled to a defensive charge that: (1) the meeting did not occur; (2) the actor did not intend for the meeting to occur; or (3) the actor was engaged in fantasy at the time of commission of the offense.
Ex parte Fisher, 481 S.W.3d at 421.
We have found no opinion in which the Tenth Court of Appeals has addressed appellant‘s constitutional contentions. See
We conclude that the majority, if not all, of the Texas appellate courts that have addressed appellant‘s contention that
Conclusion
Having overruled each of appellant‘s issues, we affirm the judgment of the trial court.
Judy C. Parker
Justice
Publish.