OPINION
Appellant James Duvall Ryder appeals from his convictions by jury of the offenses of aggravated sexual assault of a child,
Background
Appellant lived with his wife and three children.
In April 2011, Bush made another report to the Department based on a statement by K.R. to her counselor. A forensic interview with K.R. was conducted during
After the jury found appellant guilty as charged and assessed punishment as noted, the trial court denied appellant’s post-judgment motions and this appeal followed.
Analysis
Sufficiency of the Evidence to Support Conviction
We will address appellant’s last issue first. In that issue, appellant contends the evidence was insufficient to support his conviction for the offense of indecency with a child by exposure as charged in count three of the indictment.
In determining the sufficiency of the evidence, we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Clayton v. State,
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for indecency with a child or aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West 2013); Lee v. State,
To prove its allegation in count three that appellant engaged in indecency with a child by exposure, the State was required to prove appellant, with a child younger than 17 years of age, with the intent to arouse or gratify the sexual desire of any person, exposed appellant’s anus or any part of appellant’s genitals, knowing the child was present. Tex. Penal Code Ann. § 21.11(a)(2)(A). The intent to
To support the indecency by exposure count, the State relied on evidence appellant and his wife engaged in sexual intercourse in front of K.R. and C.R. Appellant contends there was no evidence that if the children witnessed their parents having sexual relations, appellant knew of their presence, yet continued for his own sexual satisfaction.
The jury heard K.R., who was ten years old by the time of trial, testify she and her brother C.R. got into trouble after they moved to Bush’s home when they “did something that ... our dad taught us.” Asked what they did, she responded, “S-EX.” She described “S-E-X” as “[pjutting a boy’s part in girl’s part.”
Jury Unanimity
We next address appellant’s second issue, which also concerns the indecency by exposure count of the indictment. Here, appellant argues the trial court harmfully erred when it failed to require the jury to reach a unanimous verdict with regard to the identity of the victim of the indecent exposure.
In considering the potential jury-charge error, we first determine whether the charge contained error by allowing the possibility of a non-unanimous verdict. Cosío v. State,
The application paragraph contained in the jury charge relating to count three instructed the jury, in part:
Now, if you find from the evidence beyond a reasonable doubt that ... the Defendant JAMES DUVAL RYDER, did then and there with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly expose the defendant’s genitals, knowing that [K.R.] and/or [C.R.], a child(ren) younger than 17 years and not the defendant’s spouse, were present, then you will find the Defendant guilty of the offense of Indecency with a Child-Exposure, as charged in Count 3 of the indictment.
Texas law requires that a jury reach a unanimous verdict about the specific crime the defendant committed. Cosio,
Admission of Extraneous Offense Evidence
In his third issue, appellant complains of the trial court’s admission of evidence of an extraneous offense, his sexual assault of another minor, K.W. The evidence consisted of the testimony of the victim’s brother, L.W., that he witnessed the assault, and the testimony of Caleigh McKeen, that the child victim told her of the assault.
Appellant’s issue is multifarious
A trial judge has wide discretion in the admission of evidence at trial. Druery v. State,
Article 38.37 of the Texas Code of Criminal Procedure contains a rule of evidence applicable to certain types of sexual abuse cases. Sections 2 and 2-a of article 38.37 “allow evidence that a person had committed certain previous criminal offenses with any child victim to be admitted into trials for certain offenses with child victims.” Pugh v. State, No. 06-14-00066-CR,
to review such an issue. Id. But, an appellate court may consider a multifarious issue if it can determine, with reasonable certainty, the errors about which complaint is made. Id. (citation omitted).
On appeal, appellant first contends the State failed to provide notice of its intent to offer the extraneous offense evidence thirty days before trial, as required by article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37, § 3. A supplemental clerk’s record was filed containing the State’s notice, filed well in advance of trial. The State’s notice was timely.
Before the jury heard L.W.’s testimony, the court held a hearing outside the jury’s presence. Ten-year-old L.W. testified to an event that occurred while appellant and L.W.’s mother were living together, near Halloween in 2010. While his mother cooked supper, L.W. and appellant were sitting on couches near L.W.’s sleeping five-year-old sister K.W. L.W. told the court he saw appellant pull KW.’s pants down and bite her “in the middle spot.”
In this Court, appellant contends the admission of L.W.’s testimony violated article 38.37. We apply the usual abuse of discretion standard to review of the trial court’s decision on admissibility of evidence offered under article 38.37. Pugh,
As noted, appellant’s argument under this issue also challenges McKeen’s testimony as violating article 38.37. McKeen testified that she and the father of L.W.
At a point in McKeen’s testimony, appellant raised an objection, which counsel voiced as “I’m objecting on the same reasons that I objected to all the testimony from [L.W.]”. As we have noted, appellant’s objection to L.W.’s testimony, raised at the end of the hearing outside the jury’s presence, was that the jury could not reasonably find appellant committed the offense he described.
In this Court, appellant argues “there was no out-of-jury-presence hearing” as to McKeen’s testimony. Appellant is correct, but appellant never raised that objection with the trial court. Such an objection cannot have been included within appellant’s statement that he “objected on the same reasons” as those he raised against L.W.’s testimony because L.W. did testify outside the jury’s presence. Appellant here argues also that McKeen’s testimony to KW.’s statement was hearsay, but neither was that objection raised with the trial court. Finally, appellant complains that the court’s failure to hear McKeen’s testimony before admitting it rendered it “impossible” for the court to make the “necessary finding” under Rule of Evidence 403. But, again, no Rule 403 objection was voiced to the trial court. See Montgomery,
The State further argues that appellant’s contentions under this third issue, as to both witnesses, are meritless because their testimony was properly admitted under Rule 404(b). See Tex. R. Evid. 404(b) (providing extraneous offenses may be admissible for purposes other than character conformity, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident); Blackwell v. State,
Ex Post Facto Law
In his fourth issue, appellant contends his conviction must be reversed because the admission of evidence under article 38.37, section 2 of the Texas Code of Criminal Procedure is the application of an unconstitutional ex post facto law.
To constitute an ex post facto law, a statute must: (1) punish as a crime an act previously committed that was innocent when committed; (2) aggravate a crime and make it greater than it was when committed; (3) inflict a greater punishment than the law annexed to the crime when committed; or (4) alter the legal rules of evidence such that less or different evidence is needed in order to convict the offender. McCulloch v. State,
Article 38.37 has long allowed admission of evidence of extraneous offenses involving the same child victim to show the state of mind of the defendant and the child as well as the relationship between the defendant and the child, rules of evidence 404 and 405 notwithstanding. Tex. Code Crim. Proc. Ann. art. 38.37. The article was amended in 2013 to add the present sections 2 and 2-a. Tex. Code Crim. Proc. Ann. art. 38.37, §§ 2(b), 2-a. As we have noted, those sections do not contain the limitation that the extraneous offense must involve the same child victim. See Pugh,
The State’s evidence showed appellant’s extraneous assault of KW. occurred in 2010. Appellant worries that by allowing admission of other-victim extraneous offense evidence for any relevant purpose, including the character, of the defendant and acts performed in conformity therewith, the 2013-amended article 38.37 permits a jury to determine a defendant’s guilt on the charged offense simply by believing the evidence of the extraneous criminal acts. In this case, appellant argues, the jury could have convicted him of assaulting K.R. “solely on its determination, beyond a reasonable doubt, that he sexually assaulted K.W.”
The State disagrees. Its brief responds: Even with the changes to [article 38.37] in the 2013 legislature, the statute does not lessen or change the required evidence in any way. The state still has to prove each element of the offenses charged, and this cannot be achieved by the offering of an extraneous offense alone. The state still must prove the victim alleged in the indictment was harmed in the manner alleged in the indictment, and cannot do so solely on the basis of the extraneous offense.
We agree with the State’s characterization of its burden. The other Texas courts who have considered an ex post facto contention as to the amended section 2 of article 38.37 also agree with the position the State asserts. In Baez the court observed that “section 2(b) does not allow extraneous offense evidence to be offered as substantive evidence of guilt..The State must still satisfy its burden of proof as to each element of the offense.”
Appellant argues also that the State’s ability under the amended article 38.37 to rely on extraneous offense evidence as substantive evidence of his guilt of the charged offenses means that he effectively was punished for an act previously committed that was “innocent”
The application of the amended version of article 38.37 to appellant does not violate the ex post facto prohibition. We resolve appellant’s fourth issue against him. Limiting Instruction for Extraneous Offense Evidence
Appellant’s first issue, like his fourth issue, is based on his concern that the jury could have convicted him merely by believing the evidence of the extraneous offense against K.W. His first issue contends the court’s charge caused him egregious harm because it failed to instruct explicitly that extraneous offense evidence offered under rule of evidence 404(b) could not be used to convict him but could be considered only for the limited purpose for which it was offered. He argues that because the trial court did not provide the jury “a specific instruction as to what this evidence could not be used for, the charge left the jury with a mistaken understanding of the law in the case.” We overrule the issue.
We begin by noting the settled law that if an opposing party fails to request a limiting instruction at the time evidence is admitted, the evidence is admitted for all purposes. Delgado v. State,
Appellant objected to the admission of testimony from L.W. and Caleigh McKeen concerning his assault of K.W., but he made no request for a limiting instruction when they testified. Their testimony thus was before the jury for all purposes. Delgado,
Nonetheless, the trial court included in its charge the following instruction:
The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. The evidence was admitted only for the purpose of assisting you, if it does, for the purpose of [sic] showing the defendant’s motive, intent, or knowledge, if any. You cannot consider the testimony unless you find and believe beyond a reasonable doubt that the defendant committed these acts, if any, were committed.
No objection was raised to the court’s charge at the charge conference. That the court was not obligated to instruct the jury to limit its consideration of evidence of appellant’s assault on K.W. does not mean that the court erred by doing so. As can be seen, the limitation described in the instruction is consistent with evidence admitted under Rule of Evidence 404(b). We previously have noted that the State proffered L.W.’s testimony as admissible under Rule 404(b) and under section 2 of article 38.37. In comparable situations, courts have found no error from limiting instructions given without request. See Irielle,
Ineffective Assistance of Counsel
Via his fifth issue, appellant asserts his counsel’s performance at trial was deficient because he failed to secure the presence of a material witness for trial and the deficiency prejudiced appellant and violated his Sixth Amendment right to effective assistance of counsel. The witness was an expert retained by appellant’s trial counsel.
The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceed
Appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State,
The Court of Criminal Appeals has stated that “[i]n making an assessment of effective assistance of counsel, an appellate court must review the totality of the representation and the circumstances of each case without the benefit of hindsight.” Lopez v. State,
The general rule is that the failure to call a witness does not constitute ineffective assistance of counsel without a showing that the witness was available to testify and that his testimony would have benefitted the defendant. Cate v. State,
The court held a post-trial hearing regarding appellant’s assertion his counsel was ineffective because he failed to present the expert witness on memory and memory development in children with whom counsel had contracted. Counsel intended to and had promised the jury in his opening statement that he would present the expert to support his defensive theory that the “children were just mistaken about what they saw and had created the events that they described from things that they had viewed within the home.” Counsel paid the expert witness $1000 for his services.
Assuming, without deciding, both that counsel’s performance fell below an objective standard of reasonableness and that the expert was both available and his testimony would have benefitted appellant, we agree with the State that appellant has not met his burden to show a “reasonable probability” that, but for this error, the result of the trial would have been different. As noted, Texas law requires appellant to meet both prongs of Strickland. A defendant does not meet his or her burden by merely showing that an error had some
The expert had not examined any of the children involved in the case, but was to testify in support of the defensive theory that the children’s allegations against appellant were mistakes, creations, or fabrications. In essence, appellant’s defense asserted the children were not remembering true events but rather had a mistaken or created memory of events that never actually happened.
The substance of the expert’s planned testimony was described in an exhibit to his affidavit. We have reviewed the lengthy exhibit. The State argues that had the witness been asked to testify in accordance with the exhibit, evidentiary objections would have precluded his expression of any but the most general conclusions or opinions, and we agree. Even trial counsel told the court at the hearing that the expert had not been provided with much information regarding appellant’s case because counsel “wanted him to just basically testify as to generalities and not specifically to this situation.” The exhibit discusses subjects that likely would have relevance to appellant’s case but includes also discussion of eyewitness testimony and related subjects that likely would not have been relevant. We can accept the proposition that the expert’s testimony might well have given appellant’s counsel a basis for an argument that the children’s memories, in theory, might have been affected by the processes and weaknesses discussed in the exhibit. But, in support of a contention his counsel was ineffective, appellant was required to present to the trial court a “reasonable probability” that the result of the trial would have been different had the expert testified. We agree with the State that appellant’s effort on that point is not persuasive. When evaluating the potential impact of the expert’s theoretical testimony on children’s memory, it must be remembered that the events that lead to appellant’s prosecution did not begin merely with a child’s outcry. They began with Bush’s observation of sexual behavior by K.R. and C.R., and C.R.’s explanation to Bush that his father did those things to his mother and his sister.
Appellant has made no showing of how the assertedly-deficient performance of trial counsel raises a reasonable probability the result of the trial would have been different. We overrule appellant’s fifth issue.
Motion for New Trial
Appellant’s sixth issue presents the same contention as his fifth, here arguing the trial court abused its discretion, harming appellant, by denying appellant’s motion for a new trial. It too is founded on his claim his counsel was ineffective because he failed to secure the testimony of the expert about memory and memory development in children.
A trial court’s ruling denying a defendant’s motion for new trial is reviewed under an abuse of discretion standard of review. Holden v. State,
Conclusion
Having resolved each of appellant’s issues against him, we affirm the judgment of the trial court.
Notes
. Tex. Penal Code Ann. § 22.02 l(a)(l)B)(i) (West 2011).
. Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).
. Tex. Penal Code Ann. § 21.11(a)(2)(A) (West 2011).
. C.R. was four years old at the time of the alleged offenses. K.R. was five years old. The couple’s third child was two years old but was not a victim of the offenses.
. The reasons for that move are unrelated to the offenses for which appellant was convicted. According to Bush, the children’s mother called her, asking if she would take her three children for a short time while she and her husband resolved issues with the Texas Department of Family and Protective Services. The children lived with Bush for the next five years. The two younger children were still living with Bush at the time of trial. By that time, K.R. was living in a residential facility to receive treatment for emotional issues. K.R. returned to Bush’s home on the weekends and during school holidays.
. K.R,'s testimony adequately shows that by the terms "boy’s part” and "girl's part” she was referring to their genitalia. See Halbrook v. State, No. 06-09-00204-CR,
. A multifarious issue is "one that embraces more than one specific ground.” Stults v. State,
. The prosecutor confirmed that by "middle spot” the witness meant K.W.'s “private area.”
. Appellant acknowledges his assault against K.W., if it occurred, was not literally innocent, but contends it should be treated as innocent for purpose of the ex post facto analysis because it could not, prior to the 2013 amendment to article 38.37, be considered as substantive evidence of his guilt of the charged offenses.
. Other courts have found no harm to the defendant in such limiting instructions. See Longoria v. State, No. 01-15-00213-CR,
. When he did not testify, the expert returned the $1000 check uncashed.