Billy Ray Stewart A/K/A Billy R. Stewart v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00071-CR

BILLY RAY STEWART a/k/a BILLY R. STEWART, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. 90678

MEMORANDUM OPINION

A jury found Billy Ray Stewart a/k/a Billy R. Stewart guilty of aggravated sexual assault of a child, found the State's enhancement allegations to be true, and assessed Stewart's punishment as confinement for life. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2008). On appeal, Stewart raises two issues. The first issue complains of error in the State's closing argument, and the second contends the trial court improperly admitted evidence in the punishment phase. We affirm.

Background

The child testified at trial that Stewart molested her. She was seven at the time of the offense and twelve at the time of trial. The molestation involved penetration and oral sex. When Stewart finished, he cleaned her up, took her home, and instructed her not to tell anyone. The child, however, told her mother, who immediately called the police. The police took the child to the hospital where she had an examination by a sexual assault nurse examiner ("SANE").

Issue One: Closing Arguments

In issue one, Stewart argues that the State impermissibly shifted the burden of proof to him in its closing argument by asserting that the defense could have tested certain swabs that were collected by the SANE nurse from the child. The State maintains that its closing argument was a proper response to defense counsel's cross examination of Tammy LeBleu, a forensic analyst for the Jefferson County Regional Crime Lab at the time of the offense and in response to defense counsel's closing argument regarding LeBleu's testimony.

As the Texas Court of Criminal Appeals explained, there are four areas of proper jury argument: "(1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement." Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992)). "To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case." Id.

LeBleu's Testimony

First, we note the relevant portions of LeBleu's testimony. LeBleu testified that she analyzed certain evidence related to the offense. Included in her analysis was the sexual assault kit, where she "found a presumptive test of semen on the debris collection swab." She explained that semen could have been present on the swab in a small amount but that her office did not perform any tests to confirm its presence because of the difficulty in testing such a small amount. LeBleu testified that she sent three items for DNA testing: 1) cuttings from the child's skirt, 2) blood samples taken from Stewart, and 3) a buccal swab from the child. ⁽¹⁾ The cuttings from the child's skirt had spots of semen in an amount sufficient for DNA testing.

On cross examination, defense counsel asked LeBleu whether semen was found on the child's panties. LeBleu testified that there were no panties in the clothing sent to her but that she had examined the child's skirt and swimsuit. ⁽²⁾ Defense counsel also questioned LeBleu about why she did not request DNA tests on the debris swab that tested presumptively positive for semen. LeBleu explained that she did not test that item because the sample was small "and [she] didn't want to destroy all of it to confirm it. [She] wanted to make sure there was evidence there in case they wanted to do something else." LeBleu stated, "If they wanted DNA, then they could do that. If I try to confirm it, I would use it all up."

Defense's Closing Argument

In closing, defense counsel argued as follows:

Then they bring in their lab person who says there [were] some swabs-remember the swabs, the debris swabs? They had a preliminary presumptive test for spermatozoa. That would have locked this deal up. Send that to the DNA lab. Let's test it; right? Well, I didn't want to do the other test[,] because that would use it all up. I didn't send it to DNA because I wanted to preserve it to test it. If it's on a piece of clothing, I can understand you saying, maybe I shouldn't test it because it could get on a piece of clothing anyway. It could fall, drop it on something. You can sit on it. It could get on it anyway. But the stuff on your skin-that's what he's accused of touching, that's what he's accused of penetrating, and they don't even test the swabs?

. . . .

Reasonable doubt. Can you believe all this beyond a reasonable doubt with all the mistakes, with all the miscues, with all the assumptions . . . . Where are the panties? Where are the tests on the swabs that come from the skin? Reasonable doubt. It's everywhere.

State's Closing Argument

Stewart complains about the following portion of the State's argument:

State: As far as the swabbings that [Defense Counsel] talked about, well, they could have had them tested, too, if they wanted to. I submit to you the reason why they did not is because they know-

Defense: I'm going to object, Your Honor, . . . that's trying to shift the burden of proof to the Defense. There's no burden on the Defense to prove anything.

Court: It's overruled.

State: But they didn't. They didn't bother to have them tested because it's going to show the same thing the other DNA testing showed. 1 in 94.3 quadrillion.

In support of Stewart's contention that the State's closing argument impermissibly shifted the burden of proof, Stewart cites Cook v. State, 702 S.W.2d 597 (Tex. Crim. App. 1984). Cook involves a comment about a defendant's failure to testify. Id. at 600. "'If the remark complained of called the jury's attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed.'" Id. (quoting Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981)).

In the case before us, however, the prosecutor's comment did not involve testimony from Stewart. Instead, the comment involved Stewart's failure to produce evidence other than his own testimony. During jury argument, the State may comment on defendant's failure to present evidence in his favor. See Pope v. State, 207 S.W.3d 352, 365 (Tex. Crim. App. 2006) (collecting cases); Jackson, 17 S.W.3d at 674; Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995). We conclude that the prosecutor's closing argument was a response to the defense's assertions about the failure to conduct certain DNA tests and was not manifestly improper. See Jackson, 17 S.W.3d at 673. We find that the prosecutor's comments did not impermissibly shift the burden of proof to the defense. Issue one is overruled.

Issue Two: Admission of Penitentiary Packets

In issue two, Stewart contends the trial court improperly admitted his penitentiary packets ("pen packets") into evidence during the punishment phase. For enhancement purposes, the State introduced three pen packets as proof of Stewart's three prior convictions. Stewart argues that admission of the pen packets was improper because the judgments contained in them did not have his thumbprint as required by the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.33, § 1 (Vernon 2005) ("The court shall order that a defendant who is convicted of a felony or a misdemeanor offense that is punishable by confinement in jail have a thumbprint of the defendant's right thumb rolled legibly on the judgment or the docket sheet in the case.").

"To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these two elements." Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (footnote omitted). The State may prove both of these elements in a number of ways, including documentary proof that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921-22.

Pen packets that are certified by the Texas Department of Criminal Justice are self-authenticated for purposes of Rules 901 and 902 of the Texas Rules of Evidence. Tex. Code Crim. Proc. Ann. art. 42.09, § 8(b) (Vernon Supp. 2008). Stewart's pen packets contained certifications from the records custodian for the Texas Department of Criminal Justice, and also contained copies of his photographs, the various criminal judgments rendered against him, and his fingerprints.

To prove Stewart's prior convictions, the State called a crime scene technician who reviewed the pen packets and took Stewart's fingerprints. The State's expert testified that she made fingerprint cards of Stewart's fingerprints and compared Stewart's prints to the ones contained in the three pen packets that had been introduced into evidence. The expert testified that the pen packets contained Stewart's fingerprints. She also identified Stewart's photographs that were contained in the three pen packets.

We conclude that the trial court did not err in admitting the pen packets, as the State established beyond a reasonable doubt that Stewart was the same person previously convicted as alleged in the indictment's enhancement paragraphs. See Flowers, 220 S.W.3d at 921. Issue two is overruled.

Accordingly, as we have overruled Stewart's two issues, we affirm the trial court's judgment.

AFFIRMED.

_____________________________

HOLLIS HORTON

Justice

Submitted on August 14, 2009

Opinion Delivered August 26, 2009

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. According to LeBleu, buccal swabs are scrapings taken from inside the mouth, and SANE nurses collect the scrapings to obtain DNA samples.

2.

Angela Dillahunty, one of the SANE nurses who examined the child, testified that they collected certain clothing items from the child-a pair of panties, a bathing suit, and a skirt.