IN THE TENTH COURT OF APPEALS
No. 10-12-00437-CR
DANIEL SCOTT JOHNSON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 77th District Court Limestone County, Texas Trial Court No. 12,564-A
MEMORANDUM OPINION
In four issues, appellant, Daniel Scott Johnson, challenges his convictions for
seven counts of sexual assault of a child and three counts of indecency with a child by
contact—both second-degree felonies. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), (d),
22.011(a)(2)(A), (f) (West 2011). We affirm. I. BACKGROUND1
Appellant was charged by indictment with seven counts of sexual assault of a
child and three counts of indecency with a child by contact for conduct perpetrated
against A.G., a child younger than seventeen years of age, from October 2003 to June
2006. Appellant pleaded “not guilty” to the charges, and a jury trial commenced.
At the conclusion of the trial, the jury found appellant guilty on all counts and
sentenced him to twenty years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice for each count of sexual assault and fifteen years’
confinement for each count of indecency with a child by contact. The trial court ordered
the imposed sentences to run concurrently with the exception of one of the sexual
assault counts, which was ordered to run consecutive with the other imposed sentences.
The trial court certified appellant’s right of appeal, and this appeal followed.
II. EXCLUSION OF TESTIMONY
In his first two issues, appellant contends that the trial court erred in excluding
portions of testimony provided by his wife, Rosa Linda Johnson, who is also the older
sister of A.G. Specifically, appellant contends that the trial court denied him: (1) “due
process and due course of law by failing to permit testimony which constituted a denial
of his right to present a complete defense”; and (2) “the right to confront his accusers by
failing to permit testimony which constituted a denial of his right to present a complete
defense.”
1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
Johnson v. State Page 2 A. Applicable Law
We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v.
State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion
standard, an appellate court should not disturb the trial court’s decision if the ruling
was within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367
(Tex. Crim. App. 2008).
Relevant evidence is that which has any tendency to make the existence of any
fact of consequence more or less probable than it would be without the evidence. TEX.
R. EVID. 401. However, evidence may be excluded under Texas Rule of Evidence 403 if
the danger of unfair prejudice substantially outweighs the probative value of the
evidence. TEX. R. EVID. 403. Rule 403 favors admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial. Allen v.
State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53
(Tex. Crim. App. 1996). The trial court has broad discretion in conducting a Rule 403
balancing test, and we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All
testimony and physical evidence are likely to be prejudicial to one party or the other.
Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Jones, 944 S.W.2d at 653. It is
only when there exists a clear disparity between the degree of prejudice of the offered
evidence and its probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806
(citing Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997)).
Johnson v. State Page 3 A proper Rule 403 analysis includes balancing the following factors: (1) the
inherent probative force of the proffered item of evidence—that is, how strongly it
serves to make more or less probable the existence of a fact of consequence to the
litigation—along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of
the evidence to confuse or distract the jury from the main issues, (5) any tendency of the
evidence to be given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation of the evidence
will consume an inordinate amount of time or merely repeat evidence already admitted.
See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Erazo v. State, 144
S.W.3d 487, 489 (Tex. Crim. App. 2004); see also Cressman v. State, No. 10-11-00393-CR,
2012 Tex. App. LEXIS 9849, at **8-10 (Tex. App.—Waco Nov. 29, 2012, no pet.) (mem.
op., not designated for publication).
B. Discussion
On appeal, appellant argues that the trial court prevented him from presenting a
complete defense by excluding testimony from Rosa Linda about prior sexual abuse
allegedly perpetrated by Marco, Rosa Linda and A.G.’s father. At trial, appellant made
an offer of proof regarding Rosa Linda’s testimony, wherein she stated that Marco
touched her inappropriately fifteen or twenty times. Rosa Linda also noted that A.G.
told her and her mother that Marco touched A.G. inappropriately as well. Rosa Linda
alleged that Marco consented to her marrying appellant at the age of sixteen because
she threatened to report him for the alleged sexual abuse. Rosa Linda recounted that
Johnson v. State Page 4 her relationship with Marco has been virtually non-existent for fifteen years and that
Marco had hit her and was convicted of class C assault. Finally, Rosa Linda stated that
A.G. was very upset that her parents did not allow her to live with Rosa Linda and that
her relationship with A.G. has not been very good since that time.
Based on our review of the record, we believe that the probative value of Rosa
Linda’s testimony regarding the alleged prior sexual abuse by Marco is outweighed by
the prejudicial effect of the evidence, if any. Specifically, A.G., who was twenty-three at
the time of trial, positively identified appellant, and no one else, as the perpetrator of
the charged offenses. Moreover, when questioned outside the presence of the jury, A.G.
denied any sexual abuse at the hands of Marco. Additionally, A.G.’s mother testified
during an in-camera hearing that A.G. never told her that Marco had touched her
inappropriately. A.G.’s mother also denied that A.G. told Rosa Linda that Marco had
touched her inappropriately.
Moreover, to the extent that appellant argues that the testimony was necessary to
rebut medical evidence presented by the State, we note that Ann Sims, M.D., testified
that A.G. had a deep notch on her hymen that could be consistent with penetrating
vaginal trauma; however, Dr. Sims emphasized that she could not conclusively state
that the deep notch was caused by sexual abuse because she had not examined A.G.’s
hymen prior to the alleged sexual abuse. Dr. Sims also stated that thinning in the notch
“is really not a very significant finding.”
Given the above, we conclude that the complained-of testimony would have
confused or distracted the jury from the main issue—whether appellant perpetrated the
Johnson v. State Page 5 crimes against A.G.—and would have been more prejudicial than probative. See
Gigliobianco, 210 S.W.3d at 641-42.
Regarding appellant’s argument that he was denied the right to confront and
cross-examine witnesses, we note that the exclusion of a victim’s prior sexual history
has been held not to violate a defendant’s confrontation and cross-examination rights.
See Allen v. State, 700 S.W.2d 924, 930-31 (Tex. Crim. App. 1985) (stating that “[t]here
have been numerous attacks upon the so-called rape shield statutes as violative of the
Sixth Amendment and these generally have been rejected” because “the right to
confront and to cross-examine is not absolute and may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process” (internal citations
omitted)). Texas Rule of Evidence 412(b) provides that “evidence of specific instances
of an alleged victim’s past sexual behavior” is inadmissible unless the evidence falls
within five categories of evidence and the trial court finds that the probative value of
the evidence outweighs the danger of unfair prejudice. TEX. R. EVID. 412(b).
Moreover, the Constitution requires only the introduction of otherwise relevant
and admissible evidence. Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth
2004, pet. ref’d) (citing United States v. Nixon, 418 U.S. 683, 711, 94 S. Ct. 3090, 3109, 41 L.
Ed. 2d 1039 (1974)). “Thus, before evidence of an alleged victim’s sexual behavior may
be admitted under rule 412(b)(2)(E), the defendant must first establish the relevancy of
the evidence to a material issue in the case. Id. “If the evidence is not relevant, it is not
admissible.” Id.
Johnson v. State Page 6 Additionally, we note that the trial court retains wide latitude to impose
reasonable limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 678,
106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986). The trial court must carefully consider
the probative value of the evidence and weigh it against the risks of admission. See
Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). These potential
risks include “the possibility of undue prejudice, embarrassment or harassment to
either a witness or a party, the possibility of misleading or confusing the jury, and the
possibility of undue delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222
(Tex. Crim. App. 2000). Furthermore, “the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, or to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (emphasis in original); see
Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref’d).
As stated earlier, A.G. and A.G.’s mother refuted Rosa Linda’s testimony that
Marco sexually abused A.G. A.G. identified appellant, and no one else, as the
perpetrator responsible for the sexual assault she suffered. Moreover, Rosa Linda did
not identify the time period in which she believed that Marco sexually abused A.G. to
correspond with the time period alleged in the indictment, nor did she refute A.G.’s
testimony that appellant committed the charged offenses. Therefore, to the extent that
appellant sought to introduce Rosa Linda’s testimony to attack the identity element of
the crime, we conclude that the complained-of testimony was irrelevant to the issue of
whether appellant committed the charged offenses during the time period described in
Johnson v. State Page 7 the indictment. See TEX. R. EVID. 401; Nixon, 418 U.S. at 711, 94 S. Ct. at 3109; Hale, 140
S.W.3d at 396. Accordingly, we cannot say that appellant was denied his right to
confront or cross-examine witnesses. See Van Arsdall, 475 U.S. at 678, 106 S. Ct. at 1434-
35; Fensterer, 474 U.S. at 20, 106 S. Ct. at 294; see also Hodge, 631 S.W.2d at 758; Walker, 300
S.W.3d at 844-45.
And finally, to the extent that appellant argues that the trial court’s ruling denied
him due process and the opportunity to present a complete defense, the record reflects
that appellant did not articulate this complaint at trial. To preserve error, there must
have been a timely request, objection, or motion stating the grounds for the ruling with
sufficient specificity to make the trial court aware of the complaint and secure a ruling.
See TEX. R. APP. P. 33.1. Specifically, regarding the exclusion of evidence, a party must
not only tell the judge that the evidence is admissible, but also explain why it is
admissible. See Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005).
Moreover, the explanation given at trial must match the one urged on appeal. Id. at 179.
Because appellant did not complain in the trial court that the complained-of ruling
denied him due process and the opportunity to present a complete defense, the trial
judge “never had the opportunity to rule upon” this rationale. Id. We therefore
conclude that appellant failed to properly preserve this contention. See id.; see also TEX.
R. APP. P. 33.1.
Based on the foregoing, we cannot say that the trial court abused its discretion by
excluding portions of Rosa Linda’s testimony. See De La Paz, 279 S.W.3d at 343; see also
Johnson v. State Page 8 Bigon, 252 S.W.3d at 367. Accordingly, we overrule appellant’s first two issues on
appeal.
III. DOUBLE JEOPARDY
In his third and fourth issues, appellant contends that his convictions for
multiple counts of sexual assault with a child and indecency with a child by contact
violated the Double Jeopardy Clause of the United States Constitution. See U.S. CONST.
amend. V.
A. Facts
As the following table describes, appellant was convicted of seven counts of
sexual assault of a child and three counts of indecency with a child by contact:
Indictment Charged Offense Date of Offense Punishment Count 1 Indecency with a child On or about October 2, 2003 15 years by contact concurrent 2 Sexual assault of a child On or about October 2, 2003 20 years concurrent 3 Sexual assault of a child On or about November 2, 2003 20 years concurrent 4 Indecency with a child On or about December 2, 2003 15 years by contact concurrent 5 Sexual assault of a child On or about October 2, 2004 20 years concurrent 6 Sexual assault of a child On or about February 2, 2005 20 years consecutive 7 Indecency with a child On or about March 2, 2005 15 years by contact concurrent 8 Sexual assault of a child On or about May 2, 2006 20 years concurrent 9 Sexual assault of a child On or about May 2, 2006 20 years concurrent 10 Sexual assault of a child On or about June 2, 2006 20 years concurrent
Johnson v. State Page 9 On appeal, appellant asserts that Counts 1 and 4 are subsumed into the
completed sexual assaults charged in Counts 2 and 3. In addition, appellant argues that
Counts 8, 9, and 10 occurred on the same date at the same location—the Limestone
Inn—and therefore constitute a single offense. We disagree.
B. Applicable Law
The Fifth Amendment to the United States Constitution provides that no person
“shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
U.S. CONST. amend. V. In other words, the Fifth Amendment’s prohibition against
double jeopardy protects against: “1) a second prosecution for the same offense after
acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple
punishments for the same offense.” Weinn v. State, 326 S.W.3d 189, 192 (Tex. Crim.
App. 2010) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187
(1977)); Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (en banc).
“Conceptually, the State and Federal double jeopardy provisions are identical.”
Stephens, 806 S.W.2d at 815; see Ex parte Busby, 921 S.W.2d 389, 392 (Tex. App.—Austin
1996, pet. ref’d); see also TEX CONST. art. I, § 14. Here, appellant contends that he is being
punished twice for the same offense.
“When the same conduct violates different criminal statutes, the two offenses are
the same for double jeopardy purposes if one of the offenses contains all the elements of
the other.” Belt v. State, 227 S.W.3d 339, 344 (Tex. App.—Texarkana 2007, no pet.). For
example, “greater inclusive and lesser included offenses are the same for jeopardy
purposes.” Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). The Texas
Johnson v. State Page 10 Court of Criminal Appeals has held that indecency with a child can be a lesser-included
offense of sexual assault of a child if both offenses are predicated on the same conduct.
Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009); Vick v. State, 991 S.W.2d 830,
834 n.2 (Tex. Crim. App. 1999); Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App.
1998).
Although a person “who commits more than one discrete sexual assault against
the same complainant may be convicted and punished for each separate act, even if the
acts were committed in close temporal proximity,” the penal statutes do not allow
“stop-action” prosecutions. Barnes v. State, 165 S.W.3d 75, 87 (Tex. App.—Austin 2005,
no pet.). In other words, “a conviction for a completed sexual assault bars conviction
for conduct that is demonstrably part of the commission of that offense.” Id. For
example, “penile contact with [the] mouth, genitals or anus in the course of penile
penetration will be subsumed.” Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App.
2004).
The Texas Court of Criminal Appeals has explained:
It is clear that sexual exploitation of children is of great concern to the legislature. The offenses enumerated by the legislature cover a range of deviant sexual conduct, beginning with exposure and continuing through sexual contact to penetration and including incest and child prostitution. The scheme encompasses escalation of abuse; no matter where in the range the perpetrator stops, the offense is complete at that point. That is not to say that every offense in the range can in all cases be prosecuted as a separate offense. While it is clear from the plain language of the various statutes that the legislature intended harsh penalties for sexual abuse of children, there is nothing in the language to suggest that it intended to authorize “stop-action” prosecution. Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03 [of the Texas Penal Code] bars
Johnson v. State Page 11 conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense. For example, indecency by genital exposure of oneself in the course of manual penetration of another are separate offenses, while penile contact with mouth, genitals, or anus in the course of penile penetration will be subsumed.
Id. at 91-92.
C. Discussion
In the present case, each count alleged in the indictment referenced a separate
and discrete act that was not subsumed within another offense. As stated above,
appellant complains about Counts 1, 2, 3, 4, 8, 9, and 10. Count 1 alleged that appellant
touched the breast of A.G. on the same day as he penetrated A.G.’s sexual organ, as
alleged in Count 2. Likewise, Count 4 alleged that appellant touched the breast of A.G.
on the same day as he penetrated A.G.’s sexual organ, which was alleged in Count 3.
Count 8 alleged that appellant caused A.G. to contact his sexual organ with her mouth,
and Count 9 alleged that appellant caused A.G.’s sexual organ to be contacted or
penetrated by appellant’s sexual organ. Count 10, which was alleged to have transpired
a month after Counts 8 and 9, asserted that appellant contacted or penetrated A.G.’s
sexual organ with his mouth. None of these counts allege the same conduct, and all are
separate and discrete offenses. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A);
see also Barnes, 165 S.W.3d at 87. And unlike Belt, the facts in this case do not
demonstrate that the sexual assaults were based on the same conduct as the alleged
indecency with a child by contact counts.2 See 227 S.W.3d at 340-44. Accordingly, we
2In Belt, the defendant was convicted of indecency with a child for contacting the complainant’s anus with his penis and for penetrating the complainant’s anus with his penis. 227 S.W.3d 339, 340-42
Johnson v. State Page 12 cannot conclude that a Double-Jeopardy violation occurred in this case. See U.S. CONST.
amend. V; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (“In this
case[,] the second indictment alleged that appellee caused the child’s sexual organ to
contact his mouth. That conduct constituted a separate and distinct statutory offense
from the alleged penetration of the child’s sexual organ by appellee’s sexual organ,
despite the fact both are violations of a single statute.”); Barnes, 165 S.W.3d at 87 (“A
person who commits more than one discrete sexual assault against the same
complainant may be convicted and punished for each separate act, even if the acts were
committed in close temporal proximity.”). We overrule appellant’s third and fourth
issues.
IV. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgments of
the trial court.
(Tex. App.—Texarkana 2007, no pet.). In modifying Belt’s convictions, the Texarkana Court of Appeals noted the following:
Although the charge in our case did not require the jury to find a particular kind of contact with J.Y.’s anus to convict Belt on the indecency by contact count, there is no evidence that Belt touched part of J.Y.’s anus except by his penis. Thus, the offense of indecency with a child by touching J.Y.’s anus, of which the jury convicted Belt, was subsumed by the aggravated sexual assault by penile penetration conviction.
Id. at 344.
Johnson v. State Page 13 AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 6, 2014 Do not publish [CRPM]
Johnson v. State Page 14