Billy v. State

77 S.W.3d 427, 2002 Tex. App. LEXIS 3387, 2002 WL 979776

Opinions

OPINION

Opinion By Justice O’NEILL.

Appellant John Wayne Billy appeals his conviction for indecency with a child. After finding appellant guilty, the jury assessed punishment at four years’ confinement, probated for eight years. In two points of error, appellant contends the trial court erred in (1) denying his motion for instructed verdict and (2) denying his right to representation of counsel. For the following reasons, we affirm the trial court’s judgment.

The grand jury indicted appellant for indecency with a child. Specifically, the indictment alleged appellant engaged in sexual contact with A.P. by touching a part of the child’s genitals with his hand. At trial, A;P. testified that when she was ten years old, she and her mother spent the night at appellant’s house in Celina, Texas. That night, she woke to find appellant had his hand in her panties. Appellant’s hand was on her “private” and he was moving it around. A.P. said appellant was touching her for a couple of minutes. When appellant stopped, she fell back asleep. A.P. testified she thought appellant was awake during the incident because he was not snoring.

Appellant testified and denied committing the offense. He acknowledged A.P. slept in the same bed with him and her mother one night. However, A.P. did not sleep next to him, and he did not touch her. Furthermore, the following morning A.P. acted normally toward appellant.

After hearing the evidence, the jury found appellant guilty of indecency with a child. In his first point of error, appellant contends the trial court erred in denying his motion for instructed verdict. A challenge to the trial court’s ruling on a motion for instructed verdict is a challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997). In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The trial court, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The trial court may choose to believe or disbelieve all or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.).

A person commits indecency with a child if he engages in sexual contact with a child. Tex. Pen.Code ÁNN. § 21.11(a)(1) (Vernon 1994). Sexual contact means any touching of the anus, breast, or any part of the genitals of a child if committed with intent to arouse or gratify the sexual desire of any person. Tex. PeN.Code Ann. § 21.01(2) (Vernon 1994). The intent to arouse or gratify may be inferred from the defendant’s conduct. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981).

Appellant asserts the evidence is legally insufficient to show he had the requisite intent because any finding of intent would require the impermissible stacking of inferences. In particular, he asserts the jury would have to base the inference that he intended to arouse or gratify his sexual desire on two other inferences, (1) the inference he was awake, and (2) the inference he intended to touch the child. We disagree.

A.P. testified that appellant put his hand inside her panties, on her private part, and moved his hand around for a couple of minutes. The jury could infer directly from appellant’s actions both that he intended the contact and that the contact was performed with the intent to arouse or gratify his sexual desire. See Wallace v. State, 52 S.W.3d 231, 234 (Tex.App.-El Paso 2001, no pet.). Because appellant’s intent could be inferred directly from his actions, no impermissible stacking is required. We resolve the first issue against appellant.

In the second issue, appellant asserts the trial court committed multiple errors that had the effect of depriving him of the effective assistance of counsel. In particular, appellant asserts the trial court erred in (1) improperly defining reasonable doubt during voir dire, (2) refusing to allow his counsel to define reasonable doubt during voir dire, and (3) refusing to allow his counsel to make proper jury argument. We begin by noting appellant did not object to the trial court’s definition of reasonable doubt at voir dire. Therefore, he has not preserved this complaint for review. Tex.R.App. P. 33.1(a)(1); see also Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App.1983). Moreover,. appellant has not provided any substantive legal argument or authority showing that the trial court’s statement at voir dire requires reversal. Rule 38.1(h) of the rales of appellate procedure requires an appellant to include in his brief a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.1997). We conclude this complaint is inadequately briefed and presents nothing for review. Similarly, appellant also purports to complain about remarks he was prohibited from making during voir dire. Again, appellant has not provided any substantive legal argument or authority to support his contention. Therefore, appellant has not properly presented a claim he was denied proper voir dire. See id.

The only argument or authority appellant cites in this issue concerns proper jury argument. Thus, the only issue presented is whether the trial court erred in sustaining the State’s objection to appellant’s closing argument. In closing, appellant argued:

[Reasonable doubt has been described as being hesitancy. Hesitancy, what does that mean? When you have something of major importance in your life and you have to make a decision about it like you’re about to do in the life of [appellant].

Let’s say you have a child. Your child has a serious illness. Your child needs an operation. Your child may live or die without it or may live or die with it. You listen to the doctors. You weigh everything. You talk about it. You have to make a decision to have the operation or not. If you hesitate, that’s a reasonable doubt as to whether you ought to have the operation.

The State objected to appellant’s argument asserting appellant (1) misstated the law and (2) was not permitted to define reasonable doubt to the jury. The trial court sustained the State’s objection. Appellant asserts the trial court erred in sustaining the objection because his attempt to define reasonable doubt to the jury was proper. The issue in this case is not whether a defendant is generally permitted to argue a definition of reasonable doubt to the jury, but rather whether the specific argument in this case was proper.

Here, the trial court refused to allow appellant to explain the meaning of “reasonable doubt” with the “hesitation” definition. This definition was approved by the court of criminal appeals in Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991). However, in Paulson v. State, the court of criminal appeals overruled Geesa concluding reasonable doubt need not be defined in the trial court’s charge. Paulson v. State, 28 S.W.3d 570, 571-72 (Tex.Crim.App.2000). In doing so, the court did not merely conclude such a definition was unnecessary, it specifically disavowed the Geesa instruction. Specifically, the court stated:

. If a conscientious juror reads the Gee-sa charge and follows it literally, he or she will never convict anyone. Considerations utterly foreign to reasonable doubt might make a person hesitate to act. The gravity of the decision and the severity of its consequences should make one pause and hesitate before doing even what is clearly and undoubtedly the right thing to do. Judgments that brand men and women as criminals, and take their money, their liberty, or their lives are deadly serious. They are decisions that make us hesitate if we háve any human feelings or sensitivity at all. So to convict, a juror must either ignore the definition, refuse to follow it, or stretch it to say something it does not say.

Id. at 572. Thus, while Paulson was not a jury argument case, the court of criminal appeals clearly expressed its opinion that the hesitation definition of reasonable doubt placed too great a burden upon the State. Its conclusion is particularly apt with respect to the hypothetical appellant attempted to use in this case. Specifically, far less than reasonable doubt should cause a parent to “hesitate” before deciding whether to allow their child to have a life threatening operation. Because the definition appellant attempted to argue was not proper, the trial court did not err in sustaining the State’s objection.

The dissent would conclude the trial court erred in sustaining the State’s objection to appellant’s argument. The dissent, however, makes no attempt to explain how the specific argument in this case was a proper construction of the reasonable doubt standard of proof. Instead, the dissent bases its conclusion that the trial court erred on the general proposition that parties in a criminal prosecution should be permitted to argue the meaning of reasonable doubt to the jury. According to the dissent, proposing a definition of reasonable doubt, irrespective of the specific definition proposed, is both a proper plea for “law enforcement” and a reasonable deduction from the evidence. Apparently, the only limit the dissent would put on the parties’ ability to argue a definition of reasonable doubt is that the parties not urge the jury to disregard the charge.¹ However, we fail to see how this places any limits on the parties’ ability to define reasonable doubt as the charge leaves that phrase undefined. Thus, the dissent essentially would hold the parties may propose any definition of reasonable doubt they see fit.² This is not the law. See Loar v. State, 627 S.W.2d 399, 401 (Tex.Crim.App.1981). Specifically, parties are not permitted to make statements about the State’s burden that are inaccurate or misleading. Arnold v. State, 68 S.W.3d 93, 102 (Tex.App.-Dallas 2001, pet. ref'd); Melendez v. State, 4 S.W.3d 437, 442 (Tex.App.-Houston [1st Dist.] 1999, no pet), overruled on other grounds by Small v. State, 23 S.W.3d 549 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Because the Paulson court concluded the Geesa definition was “redundant, confusing, and logically-flawed” and would not allow a jury to convict if followed literally, appellant’s argument based on that definition necessarily constituted an inaccurate and misleading statement about the State’s burden.³ Therefore, we cannot conclude the trial court erred in sustaining the State’s objection to the argument. We overrule appellant’s second point of error.

We affirm the trial court’s judgment.

Dissenting Opinion By Justice MOSELEY.

Footnotes

1

. The dissent would also prohibit the parties from arguing the definition was the "legal” definition, binding on the jury. This does not in any way limit the parties’ ability to propose definitions, just the manner in which they may propose them. Further, to the extent argument regarding the meaning of the reasonable doubt standard of proof does not attempt to provide the "legal” meaning of the State’s burden of proof, we fail to see how it falls within any permissible category of jury argument.

2

. The Fourth and Seventh Circuits have both held the trial court is permitted to prohibit counsel from defining reasonable doubt in closing argument. See United. States v. Patterson, 150 F.3d 382, 389 (4th Cir.1998); United States v. Glass, 846 F.2d 386, 387 (7th Cir.1988); see also Note, Reasonable Doubt: An Argument Against Definition, 108 Harv. L.Rev. 1955, 1972 n. 115 (same policy rationale that supports leaving reasonable doubt undefined also supports denying counsel the opportunity to define reasonable doubt during closing argument); but see United States v. Hall, 77 F.3d 398, 401 (11th Cir.1996) (trial court erred in refusing to allow defendant from arguing "accepted” definition of reasonable doubt in closing). Because the trial court did not prohibit appellant from defining reasonable doubt to the jury in this case, we express no opinion as to whether we agree with these courts.

3

.The dissent suggests our conclusion somehow conflicts with Paulson because the Paulson court noted inclusion of the Geesa definition in the charge would not constitute reversible error if the trial court "acquiesces” to giving the instruction provided both the State and defendant agree. Obviously, a defendant cannot specifically agree to an instruction that benefits him and then obtain a reversal based on that instruction. We fail to see the relevance of that portion of Paulson to the issue before us.