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Opinion filed August 21, 2015
In The
Clement!) Court of Appeals No. 11-14-00143-CR
JOHN EDWARD HOLMES, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court Midland County, Texas
Trial Court Cause No. CR39464
MEMORANDUM OPINION
The jury found Appellant, John Edward Holmes, guilty of sexual assault1 and assessed punishment at confinement for a term of fifteen years. The trial court sentenced Appellant accordingly. Appellant asserts a sufficiency issue and an evidentiary issue on appeal. We affirm.
I. The Charged Offense
The grand jury indicted Appellant for the offense of aggravated sexual assault. The jury found Appellant guilty only of the lesser included offense of
'Tex. Penal Code Ann. § 22.011(a)(1)(A) (West 2011).
sexual assault. A person commits the offense of sexual assault if the person intentionally or knowingly "causes the penetration of the anus or sexual organ of another person by any means, without that person's consent." Penal § 22.011(a)(1)(A). As charged in this case, "without consent" means that the actor compels the other person to submit or participate by the use of physical force or violence or that the actor compels the other person to submit or participate by threatening to use force or violence against the other person and that the other person believes that the actor has the present ability to execute the threat. See id. § 22.011(b)(1), (2). The offense of sexual assault is a second-degree felony. Id. § 22.011(f). The range of punishment for a second-degree felony is confinement for not more than twenty years or less than two years. Id. § 12.33(a).
II. Evidence at Trial
The victim, C.S., testified that she lived with Appellant from October 26, 2011, to December 3, 2011, in Midland, Texas. The two met at a bus station in Montgomery, Alabama, in April of that year, and after several months of communication, C.S. moved in with Appellant and began a romantic relationship with him. The relationship deteriorated after C.S. learned of Appellant's possible infidelity, and C.S. confronted him about it at his place of work. After Appellant attempted to dispel C.S.'s concerns, C.S. left but returned later to pick him up at the end of his shift. On the way back to Appellant's apartment, Appellant became increasingly angry at C.S.'s silence toward him. After they arrived at the apartment, C.S. remained silent as Appellant threatened to rape her.
Appellant then moved some of C.S.'s belongings outside, and as C.S. exited the apartment, Appellant grabbed her by the hair, placed her in a headlock, and took her back into the apartment. C.S. testified that the headlock restricted her breathing. She said that Appellant stated, "[Yjou're going to give me my p—y." Appellant continued to assault her and restrict her breathing before he tore off her clothes, took her into the bedroom, threw her onto an air mattress, forced open her legs, and penetrated her vagina with his penis. C.S. said Appellant "violently" raped and hurt her. She testified that he said after the assault, "That's my p—y" and "a raped p—y is the best p—y." After the rape, C.S. told Appellant she was going to report the rape to the police. Appellant responded, "No. We're going to take a shower," and he attempted to wash away the evidence from her vaginal area with antibacterial soap.
C.S. remained at the apartment that night, fearing that Appellant would harm or kill her if she attempted to leave. C.S. dropped off Appellant at work the next morning and returned to his apartment. C.S. packed her belongings and vandalized Appellant's apartment. Afterward, C.S. went to Midland Memorial Hospital for treatment and a sexual assault evaluation.
Donna Doyle, a certified sexual assault nurse examiner (SANE), testified she was a nurse at Midland Memorial Hospital. Doyle testified she took a medical history from C.S. and performed a sexual assault examination shortly after C.S. arrived at the hospital. Doyle completed a body surface and genital examination. She collected hair and blood evidence from C.S.; scrapings and swabs from C.S.'s fingernails; swabs from C.S.'s mouth, vagina, and anus; and a debris swab from a bite mark. Doyle noted that C.S. had bruises on her fingers, arms, and above an elbow; a bite mark on her inner upper arm; and vaginal injuries consistent with sexual assault. Doyle testified that C.S. identified Appellant as her attacker, but Doyle said she could not rule out the possibility that the bruises and injuries resulted from consensual sex.
Detective Rodriguez testified she took C.S's statement at the hospital just before the SANE examination. Detective Rodriguez's investigation led her to suspect Appellant of the crime. When Appellant was questioned at the Midland
Police Department, after he received and waived his Miranda2 rights, Appellant never mentioned he had a sexual relationship with C.S. However, when the DNA samples were taken, Appellant volunteered to Detective Steven Sanders of the Midland Police Department, without being asked any questions, that Appellant had sexual relations with C.S. "all the time."
Detective Sanders testified that he took DNA swabs from Appellant and gave them to Detective Rodriguez. Detective Rodriguez obtained the results of the SANE examination and logged them into evidence; he did the same with the DNA swabs. Those DNA swabs were tested by Caitlyn Lott, a forensic DNA analyst, and by Sarah Rothwell, a forensic DNA scientist—both of whom were employed by the Texas Department of Public Safety Crime Laboratory.
Rothwell testified that she tested samples from Appellant's swabs and samples from C.S.'s blood and vaginal swabs. Rothwell testified that, as to the "DNA profile from the sperm fraction of the vaginal swab, suspect Holmes cannot be excluded as the contributor of the major component in the profile" and that the probability of selecting an unrelated person at random to be the source of the major component was "one in 20.62 sextillion"3 for African-Americans. She opined with a reasonable degree of scientific certainly that Appellant was the source of the major component in the DNA profile.
III. Issues Presented
Appellant first argues that the evidence was insufficient to support a conviction for the lesser included offense of sexual assault. Second, Appellant argues that the trial court abused its discretion when it excluded C.S.'s prior conviction for prostitution.
2Miranda v. Arizona, 384 U.S. 436 (1966).
3Sextillion is a cardinal number represented in the United States by one followed by twenty-one zeros.
5
IV. Standard ofReview
The standard of review for sufficiency of the evidence is whether any rational jury could have found Appellant guilty beyond a reasonable doubt. Jackson v. Virginia, AA2> U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence in the light most favorable to the jury's verdict and decide whether any rational jury could have found each element of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. The trier of fact may believe all, some, or none of a witness's testimony because the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State, 1Q1 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref d).
The standard of review for the admission or exclusion of evidence is an
abuse of discretion standard, and the trial court is to be afforded wide discretion in ruling on the admissibility of a prior conviction. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court has the discretion to include or exclude evidence of a victim's prior criminal convictions. Jones-Jackson v. State, 443 S.W.3d 400, 402 (Tex. App.—Eastland 2014, no pet). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Even if the trial court gave the wrong reason for its decision, the decision will be upheld as long as it is correct on some theory of law applicable to the case. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
V. Analysis
We will first address Appellant's challenge to the sufficiency of the evidence. We will then address his second issue regarding the exclusion of C.S.'s 1999 conviction for prostitution.
6
A. Issue One: Sufficiency ofthe Evidence Appellant argues that the evidence at trial was insufficient to support his conviction because C.S.'s actions after the sexual assault did not reflect the actions
of a typical sexual assault victim. Appellant further argues that the lack of acute vaginal injury was inconsistent with sexual assault and was evidence of consensual sex and his innocence. Sexual assault victims do not react uniformly. Shaw v. State, 764 S.W.2d 815, 818 (Tex. App.—Fort Worth 1988, pet. refd) (expert testimony that victims of "acquaintance rape" often remain calm after the assault and delay reporting it). The morning after the sexual assault, C.S. returned to Appellant's apartment and vandalized it, including the air mattress on which she was sexually assaulted; C.S. then left Appellant's apartment with her belongings and later reported the crime to the police. C.S. also took some of Appellant's personal belongings from the apartment because she hoped he would call the police.
C.S. initially went to the hospital for treatment, and the police were called when C.S. explained why she was there. After C.S. reported the sexual assault to the police, she was taken to a different location for a SANE examination. Doyle treated C.S., and Doyle testified that C.S. sustained an injury to her vagina. Appellant claimed there was no assault because there was no acute injury to the labia majora, labia minora, and vagina. But Doyle outlined that, in ninety-four percent of sexual assault cases, there is no acute injury to the labia majora, labia minora, and vagina. Doyle also testified that C.S.'s account was consistent with the injuries she suffered and that those injuries indicated an assault took place.
Detective Rodriguez took C.S.'s statement at the hospital before the sexual assault examination. Detective Rodriguez obtained the results of the examination and logged them into evidence. Detective Sanders testified he took buccal swabs from Appellant as part of an investigation of Appellant. Once the DNA samples were tested, Appellant could not be ruled out as the contributor of the sperm portion from C.S.'s vaginal swab. The probability that the sperm belonged to someone else was at least one in 20.62 sextillion.
C.S. described in detail how Appellant threatened her, tore off her clothes, threw her onto the air mattress in the bedroom, forced her legs apart, and violently penetrated her vagina with his penis without her consent. The jury may believe all, some, or none of a witness's testimony because the jury, as factfinder, is the sole judge of the weight and credibility of the witnesses. Sharp, 101 S.W.2d at 614. The jury was free to believe C.S. We defer to the jury's, resolution of any conflicting inferences raised in the evidence and presume that the jury resolved such conflicts in favor of the prosecution. Jackson, 443 U.S. at 318; Brooks, 323 S.W.3d at 894; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). We have reviewed the record, and we hold that a rational jury could have found beyond a reasonable doubt that Appellant sexually assaulted C.S. We overrule Appellant's first issue.
B. Issue Two: The Exclusion of the Victim's Prior Prostitution Conviction
Appellant argues he should have been allowed to introduce evidence that C.S. had a prior conviction for prostitution. The trial court forbade Appellant from impeaching C.S. with a remote misdemeanor conviction for prostitution. The trial court found that the probative value of the 1999 conviction was outweighed by its prejudicial effect.
A trial court has the discretion "to impose reasonable restrictions or limits on cross-examination without violating an accused's constitutional right to confront witnesses." Nevels v. State, 954 S.W.2d 154, 157 (Tex. App.—Waco 1997, pet. refd). Rule 609(a) provides that a witness's character for truthfulness may be attacked by evidence that the witness has been previously convicted of a felony
8
crime or a crime of moral turpitude, regardless of punishment, if the trial court determines that the probative value of the evidence outweighs its prejudicial effect and the evidence is elicited from the witness or established by a public record. Tex. R. Evid. 609(a); Jones-Jackson, 443 S.W.3d at 402; see also Tex. R. Evid. 412 (admissibility of evidence of victim's previous sexual conduct). Rule 609(b) limits the reach of Rule 609(a) by providing that a conviction more than ten years old is inadmissible, unless the court determines that "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Tex. R. Evid. 609(b).
Appellant argues the "tacking" doctrine applies and requires an analysis under the standard of "outweighs," under Rule 609(a), rather than the standard of "substantially outweighs," under Rule 609(b). But the tacking doctrine, as we have recently held, no longer applies, and the "substantially outweighs" standard in Rule 609(b) is the exclusive standard to use to determine the admissibility of C.S.'s remote convictions. Jones-Jackson, 443 S.W.3d at 403.
The Court of Criminal Appeals set out the following factors in Theus to weigh the value of such evidence: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent criminal history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the witness's testimony, and (5) the importance of the witness's credibility. 845 S.W.2d at 880.
Prostitution is a crime of moral turpitude. Holgin v. State, 480 S.W.2d 405, 408 (Tex. Crim. App. 1972); Husting v. State, 790 S.W.2d 121, 126 (Tex. App.— San Antonio 1990, no pet.). But the impeachment value of an admission of such a conviction is low in C.S.'s case because such an admission would not have made her allegations less credible, given the other evidence in the case. And, although C.S.'s credibility was an important part of the case, the lack of deception involved in the remote conviction and the lengthy time period between that conviction and the present trial weighed heavily against the inclusion of the remote conviction for prostitution. In addition, the similarity factor is inapplicable here because C.S. was the victim of the crime. We have weighed all the relevant factors, and we hold that the trial court did not abuse its discretion when it prohibited Appellant from impeaching C.S. with her remote misdemeanor conviction for prostitution. We overrule Appellant's second issue.
VI. Conclusion
We have reviewed the record and hold that there was sufficient evidence for
a rational jury to find beyond a reasonable doubt that Appellant committed the offense of sexual assault. We also hold that the trial court did not abuse its
discretion when it excluded evidence of C.S.'s remote conviction for prostitution.
VII. This Court's Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
August 21, 2015 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
£Q>Y
LIST OF PARTIES AND RESPECTIVE COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), Appellant John Edward ^Holmes certifies that the following is a complete list of the names and addresses of
the parties to the final judgment and their respective counsel:
Appellant John Edward Holmes Christine Schwartz 1536 East 1-10 State Bar No. 24056733 Ft. Stockton, TX 79735 Attorney at Law (At his last known address) 1007 W.Texas Ave.
Midland, Texas 79701 Appellate Counsel
Mark H. Dettman Attorney at Law 415 W. Wall St., Suite 101 Midland, Texas 79701 Trial Counsel
Appellee The State of Texas Teresa Clingman Midland County District Attorney Midland County Courthouse 500 N. Loraine Midland, Texas, 79701 Appellate Counsel
Steve Stallings Midland County District Attorney Office Midland County Courthouse 500 N. Loraine Midland, Texas, 79701 Trial Counsel « 1
Trial Judge Hon. Elizabeth B. Leonard 238th District Court Midland County Courthouse Midland, Texas, 7^701
T .i, ., ) '
hi
TABLE OF CONTENTS
LIST OF PARTIES AND RESPECTIVE COUNSEL ii
TABLE OF CONTENTS iv
INDEX OF AUTHORITIES v
ISSUES PRESENTED/POINTS OF ERROR 3"
STATEMENT OF FACTS 4
STATEMENT OF THE CASE 9
SUMMARY OF THE ARGUMENT 12
ARGUMENT AND AUTHORITIES
POINT OF ERROR NUMBER ONE: The evidence by the State at Trial was legally insufficient to support a conviction for the offense of Sexual Assault...
.- ".. 13
POINT OF ERROR NUMBER TWO: The trial court abused its discretion when it excluded the victim's prior criminal convictions that were more than 10 years old 18
PRAYER 23
CERTIFICATE OF SERVICE 24
CERTIFICATE OF COMPLIANCE 25
IV
INDEX OF AUTHORITIES
£0P
i
UNITED STATES SUPREME COURT CASES
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 LEd.2d 560 (1979)..
13
TEXAS COURT OF CRIMINAL APPEALS CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 13,14
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) 14
Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996).... 14
King v. State, 29 S.W.3d 556 (Tex. Crim. App., 2000) 13
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) 14
TEXAS COURTS OF APPEALS CASES
Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) 18
Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex. App.-Houston [1st Dist.]) 20,21,22
Leyba v. State, 416 S.W.3d 563, 567 (Tex. App.-Houston [14 Dist.] 2013)..
20
McClendon v. State, 509 S.W.2d 851, 855-57 (Tex. Crim. App. 1974) (op. onreh'g) :20
Menchaca v. State, 901 S.W.2d 640 (Tex. App. - El Paso, 1995, pet. refd)
13
Montgomery v. State, 810S.W. 272,-291 (Tex. Crim. App. 1990), .18
V
•i •
c&\
Rodriguez v. State, 5 31 S.W.3d 359, 363 (Tex. App.—San Antonio 2000, pet. refd) 19, 20, 21, 22
Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.-Houston [1st Dist.] 1990, pet. refd) 20
STATUTORY PROVISIONS
Tex. R. Evid. 609 18
VI
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above-entitled and numbered cause. The following terms and conditions
have the following meanings:
1) Appellant.^vV \jl.^.LCr ....John Edward Holmes 2) State Appellee, State of Texas
3) Spears Chiquita Spears
4) Rodriguez Detective Rose Rodriguez
5) Sanders Seargent Steven Sanders
6) Doyle Donna Doyle
7) Lott.. Caitlyn Lott
8) Rothwell Sara Rothwell
9) RR Vol. x, p. x Volumes 1-6 of 6 Volumes of the Official Reporter's Record, page no. x.
10) CRVol.x, p. x Volume 1 of 1 Volume of the Official Clerk's Record, page no. x.
ISSUES PRESENTED FOR REVIEW tpf
POINT OF ERROR NUMBER ONE:
The evidence by the State at Trial was insufficient to support a conviction of Sexual Assault.
POINT OF ERROR NUMBER TWO:
The trial court abused its discretion when it excluded the victim's prior criminal convictions that were more than 10 years old.
f
STATEMENT OF FACTS
Chiquita Spears, (hereinafter Spears) and Appellant met in April 2011
in Montgomery, Alabama. Soon after meeting, Spears and Appellant
started a romantic relationship. By October 2011 Spears moved to
Midland, Texas to live with Appellant. Spears testified that the first couple
of weeks into the relationship everything was good.1 According to Spears
she and Appellant had consensual sex two to three times a week,2 However, the relationship starting going south when Spears suspected
Appellant was cheating on her.3 On December 2, 2012, Spears confronted Appellant at his work about her beliefs of him cheating.4 According to Spears, she had made the decision to end the relationship and return to her
home in Houston.5 Even though Spears had made the decision to leave,
Spears picked up Appellant from work later that day. According to §pears,
1 R.R. Vol. 3, p. 22.
2 R.R. Vol. 3, p. 23.
3 R.R. Vol. 3, p. 24-25.
4 R.R. Vol. 3, p. 25.
5 Id.
Appellant was angry-thatSpears wanted to return to Houston.6 Once at the <
apartment, Appellant began to make a series of threats. While Spears
gathered her clothes, Appellant allegedly put his arm around her neck and
grabbed her hair.7 Spears testified she could barely breathe.8 Appellant began to beat her in living room. Spears testified that Appellant took off her
jeans and took her into the bedroom.9 Once in the bedroom Appellant"
Vyjr continued to threaten Spears.10 Appellant allegedly forced Spears's clothes s!
':*>
IK off, lifted her legs and forcibly had sex with her.11 After the alleged incident,
Spears made no attempts to leave the apartment for help.12 She had her own vehicle and Appellant did not own one at the time.13 Spears took Appellant to go get food. Spears testified that she stayed the night and
b R.R. Vol. 3. P. 26-27.
7 R.R. Vol. 3, p. 32-35.
8 Id.
9 R.R. Vol. 3, p. 36-37.
10 R.R. Vol. 3, p. 37.
11 R.R. Vol. 3, p. 38.
12 R.R. Vol. 3, p. 43.
13 R.R. Vol. 3, p. 70.
slept next to Appellant in the bedroom.14
The next day, December 3, 2011, Spears took Appellant to work at
6:00 in the morning.15 After dropping off Appellant at work, she returned to
the apartment. Spears broke" dishes and cut up the air mattress.16 She
took Appellant's only decent pair of jeans and took his DVD player.17
Spears testified that she made no attempts to call the police or anyone jor
help,.18 Spears in fact returned to the apartment to destroy some of
Appellant's property. According to Spears she wanted Appellant to call the
police.19 It was not until later in the afternoon of December 3rd that Spe.ajis
went to the hospital complaining of pain and the alleged rane.20 While at
the hospital Donna Doyle (hereinafter Doyle) performed a sane exam on
Spears. Doyle performed a series of tests and gathered slides, blood
14 R.R. Vol. 3, p. 43-44
15 R.R. Vol. 3, p. 81.
16 R.R. Vol. 3, p. 83.
17 Id. 18 R.R. Vol. 3, p. 43-47. ZWWM 19 R.R. Vol. 3, p. 46.^y MMWy^&ffiif 20 R.R. Vol. 3, p. 47-48.
samples, hair samples, and oral swabs. According to Doyle, Spears had
multiple small bruises on her body.21 Doyle could not tell the age of the bruises by looking at them.22 Although Spears claimed Appellant choked,
her Do^le^sawjTp bruises around Sp^ars'jneck.223
24
After performing a vaginal exam, Doyle noted n£_brujsing or trauma.
There were no acute injuries. Detective Rodriguez (hereinafter Rodriguez)
was assigned lead detective to the case. Rodriguez testified that she met
Spears at the Midland Memorial Hospital at about 2:00 in the afternoon of December 3, 2011.25 That same afternoon Rodriguez made contact with
Appellant. According to Rodriguez, Appellant was cooperative.26 Sergeant Sanders (hereinafter Sanders) obtained the DNA sample of Appellant. According to Sanders, Appellant was cooperative with him as
21 R.R. Vol. 3, p. 32.
22 R.R. Vol. 3, p. 146. -
23 R.R. Vol. 3, p. 147.
24 R.R. Vol. 3, p. 151.1
25 R. R. Vol. 3, p. 96.
26 R.R. Vol. 3, p. 111.
well.27 The evidence from the sane exam and the DNA sample of Appellant
was sent to the lab for testing. Caityin Lott (hereinafter Lott) prepared the
samples for testing. Lott testified that there was semen on the vaginal
swabs.28 Sarah Rothwell (hereinafter Rothwell) analyzed the samples that
Lott collected. According to Rothwell, Appellant was the source of the
semen.
On January 27, 2012, Appellant was indicted forLJhe_charge of
aggravated sexual assau It and assauIt fam\\yyj^s^J^yjc\\g}arig. On May
12, 2014 appellant's case was called for trial in the 238th Judicial District
Court of Midland County, Texas. Appellant by and through his trial counsel,
Mark H. Dettman, appeared at trial and pled not guilty to the charges. The
State called a total of six witnesses, however; only Spears was able to
testify regarding the actual incident. There were no other witnesses to the
incident. Appellant called no witnesses during the guilt/innocence phase of
trial. After a 4-day trial appellant was found guilty of the lesser-included /
sexual assault. Appellant was sentenced to 15 years confinement in the
27 R.R. Vol. 3, p. 118.
28 R.R. Vol. 4, p. 12.
29 R.R. Vol. 4, p. 38.^ institutional division of the Texas Department of Criminal Justice. Appellant
now appeals.
STATEMENT OF THE CASE
Pursuant to Rule 38.1(b) of the Texas Rules of Appellate Procedure,
Appellant makes his preliminary statement. This is an appeal from a
conviction for Sexual Assault, a second-degree felony offense.
On January 27, 2012, Appellant was indicted for the charge of
Aggravated Sexual Assault and Assault Family\^.l^cebyChoking. In
Count One (1) it was alleged that Appellant intentionally and knowingly
cased the penetration of the female sexual organ of Chiquita Spears
(hereinafter Spears) by the sexual organ of Appellant compelled Spears to
submit and participate by the use of physical force and violence directed
against Spears and she believed Appellant had the present ability to
execute said threat and Appellant intentionally and knowingly placed
Spears in fear of death and serious bodily injury would be imminently
inflicted on Spears. In Count Two (2) it was alleged that Appellant
intentionally, knowingly and recklessly caused bodily injury to Spears by
impending the normal breathing or circulation of the blood of Spears by
applying pressure to Spears' throat or neck or by blocking her np_seor
30
mouth and Spears was a member of the family or household of Appellant.
On May 12, 2014, Appellant's case was called for trial, in the 238th
Judicial District Court of Midland County, Texas.31 Appellant, by and
through his trial counsel, Mark H. Dettman (hereinafter Dettman), appeared
at trial and pled not guilty to the charges.
charged in Count One of the indictment but found Appellant guilty oMhe
lesser-included offense of sexual assault as charged in Count One of the
indictment.33 The jury found appellant not guilty of the felony offense of
assault family violence,—by choking as charged in Count Two of the
indictment. The defendant elected for the jury to assess punishment.34 <§n
May 14, 2014, the punishment proceedings began. After being
admonished, Appellant testified in the proceeding.35 Appellant called no
other witnesses. On May 15, 2014, the punishment phase of the trial
30C.R. Vol. 1, p. 7.
31 R.R. Vol. 3, p. 6.
32 R.R. 2, p. 132.
33 R.R. Vol. 4, p. 107.
34C.R. Vol. 1,p. 37.
35 R.R. Vol. 5, p. 134-135.
concluded. Having found Appellant guilty of the second-degree felony
offence of sexual assault, the jury assessed Appellant's prison sentence at
fifteen (15) years confinement in the Institutional Division of The Texas
Department of Criminal Justice.36
36 R.R. Vol. 5, p. 19.
/ trxJ
SUMMARY OF ARGUMENT
Appellant raises two points of error on appeal. Appellant argues that
(1) the evidence was insufficient to convict him of the offense of sexual
assault and (2) the trial court abused its discretion when it excluded the
victim's prior criminal convictions that were more than 10 years old. The
evidence presented by the State simply insufficient to support the verdict
and trial court erred when it excluded the victim's probative remote
convictions.
4Co^
I. POINT OF ERROR NUMBER ONE:
The evidence by the State at Trial was insufficient to support a conviction for the offense of Sexual Assault.
1. Standard of Review and Applicable Law
In determining whether the evidence is sufficient to support each
element of a criminal offense that the State is. required to prove beyond a
reasonable doubt, the Jackson v. Virginia37 legal sufficiency standard is
now the only standard that a reviewing court applies.38 The duty of the
court of appeals is to determine if the explicit and implicit findings of the jury
are rational by reviewing all of the evidence in the light most favorable to
the verdict. Although the courts analysis considers all of the evidence
presented at trial, the court of appeals does not re-weigh the evidence or
substitute its' judgment for that of the jury.39 Particularly, the trier of fact
serves as the sole judge of witness' credibility and weight to be afforded to
any testimony and is free to accept or reject any evidence put forth by
37 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 LEd.2d 560 (1979). /Oty^
38 see Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.); Menchaca v. State, 901 S.W.2d 640, 650 (Tex. App. - El Paso, 1995, pet. refd).
39 King v. State, 29 S.W.3d 556 (Tex. Crim. App., 2000).
either side.40 While the jury is free to accept or reject any evidence put
forth by either side,41 an appellate court engaging in a legal sufficiency,
review must only determine whether the inferences drawn by the trier of
fact are reasonable "based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict."42:
In deciding whether or not evidence in a given case is factually and
legally sufficient, the court must look at all of the evidence adduced at trial
to determine if viewing all the evidence impartially, it must set aside the
verdict because it is so contrary to the overwhelming weight of the evidence
as to be clearly erroneous and unjust."43
2. Argument
The State's case against the Appellant rested primarily on the
testimony of Spears. Spears' admitted actions did not rise to someone that
40 Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see Brooks, 323 S.W.3d at 899.
41 Id.
42 Clayton v. State, 235 S.W.3d 772, 778 (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).
43 Clewis v_ State, 922 S.W.2d 126 (Tex.Crim.App. 1996); Stone v. State, 823 S.W.2d 375 (Tex.App.—Austin 1992, pet. refd, untimely).
1 • 9 C6pU was sexual assaulted. After the alleged rape, Spears never testified to
being in fear of him. She had her own vehicle and Appellant did not own
one at the time.44 There was no testimony that Appellant did not allow
Spears to leave. She had her own car keys and her own set of keys to
apartment.45 Even though she had the ability to leave, Spears chose to
stay and sleep in the same bed with Appellant after he allegedly raped
her.46 Spears agreed to take Appellant to work the next morning.47 Spears
returned to the apartment and destroyed Appellant's property; broke dishes
and cut up the air mattress.48 She took Appellant's only decent pair of
jeans and took his DVD player.49 Spears did not go to the hospital claiming
she had been raped until 2:00PM.50 Her actions match with a woman who
is upset that her boyfriend is seeing another woman; not one that has been
44 R.R. Vol. 3, p. 70.
45 R.R. Vol. 3, p. 87. 46 R.R. Vol. 3,p..81.
47 R.R. Vol. 3, p. 82
48 R.R. Vol. 3, p. 83.
49 Id.
50
R.R. Vol. 3, p. 47-48.
' " I C£pl sexually assau lted!Sp^aLSlJte3limoiw^
support a conviction of Sexual Assault.
The State's other^witnesses, Rodriguez, Sanders, Doyle, Lott and
Rothwell were not present during the alleged threats and sexual assault.
The important part of the testimony of Rodriguez and Sanders was that^
?rative. Doyle, Lott and Rothwell only confirmed that
Spears and Appellant has sexual relations. Neither witness bolstered the
evidence of that a sexual assault occurred. Doyle admitted the bruises can
be caused in a variety of manner and that she^y^oJ^e^heJpi
52
Spears.51 Doyle also testified that she could only tell what she is told i' ---rt '^.*J. " ~
Moreover, after performing a vaginal exam, Doyle noted no bri
Jrauma. ^rSjaPP^^^W There • '"' " "H •"
wasnpacute
..|^™™~--» ^-j.,-•
injury
ji'bwiIi
to labia majora. mi iyinim ifln.nii^ i| mmi'*""?1!1''1!;
There was no acute jgw»**S'«asr5gs^^
injury to labia minora.55 There jwas^no-acute, injury^to vagina.56 Lott
51
R.R. Vol. 3, P- 146-147.
52
RR. Vol. 3, P- 148.
53
R.R. Vol. 3, P- 151.
54
R.R. Vol. 3, P- 151.
55
Id.
56 \A
« '' «
copy
testified that she could not tell how the semen got on the sample collected
but only that it was identified.57 Roth could not testify^ as to if a crime occurred; whether consensual or nonconsensual.58.
While the jury is the sole trier of fact and any inconsistencies in the
evidence are deemed to have been resolved by the jury in favor of their
verdict, it is impossible that the jury could have returned a guilty verdict
based on the evidence adduced at trial. The evidence presented by the
State simply insufficient to support the verdict. The inferences drawn by
this jury were unreasonable "based upon the combined and cumulative
force of all the evidence" due to consensual sexual relationship between
Spears and Appellant and the actions of Spears.
57 R.R. Vol. 3, p. 27.
58 R.R. Vol. 4, p. 40.
» " * copy
II. POINT OF ERROR NUMBER TWO:
The trial court abused its discretion when it excluded the victim's prior criminal convictions that were more than 10 years old.
1. Standard of Review and Applicable Law
The abuse of discretion standard applies most often to the trial court's
evidentiary rulings. The test for abuse of discretion is "whether the trial
court acted without reference to any guiding rules and principles' or
"whether the act was arbitrary or unreasonable."59 Reasonable minds can
differ on issues such as the relevance of a particular piece of evidence, and
"as long as the trial court's ruling was at least within the zone of reasonable
disagreement," the appellate court should not substitute its reasonable
perception for that of the trial judge.60 However, it explained, "when it is
clear to the appellate court that what was perceived by the trial court as
common experience is really no more than the operation of a common
prejudice, not borne out in.reason, the trial court has abused its discretion."
The admissibility of evidence of prior convictions is currently
governed by Rule 609 of the Texas Rules of Evidence. The rule provides:
59 Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
60 Montgomery v. State, 810 S.W. 272, 291 (Tex. Crim. App. 1990).
cpf°y
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the i interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect.
Rule 609(b) renders a prior conviction presumptively inadmissible if it is one
for which the witness has been released from custody more than ten years
before trial.61 A trial court may admit a conviction deemed to remote under
this rule if the court determines that, under the "specific facts and
circumstances" the probative value of the conviction substantially
outweighs its prejudicial effect. This rule acknowledges that a witness "is
61 Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.-Fort Worth 2001, pet. refd)
copy
capable of reforming his character over a period of law-abiding conduct."62
H<^exe.t,Jf,evidence existed that the witness had failed to reform his
character, for example, by committing a subsequent felony or crime
involving moral turpitude, then the "taint of remoteness was destroyed and
the witness could be impeached with evidence of the prior conviction."63 If
a defendant demonstrates a failure to reform as witnessed by later criminal
behavior, remote convictions are more palatable."64
This common-law doctrine, known as "tacking," has been utilized by
several courts of appeals when performing a Rule 609 analysis.
Accordingly, under this analysis, if a witness' conviction is more than ten
years old, a court would consider whether it had been "tacked" onto a
subsequent conviction, which then alters the legal standard governing its
admission.65 Under this approach, if a subsequent conviction indicates "a
62 Leyba v. State, 416 S.W.3d 563, 568 (Tex.App.-Houston [14 Dist.] 2013).
63 Id., citing McClendon v State, 509 S.W.2d 851, 855-57(Tex. Crim. App. 1974) (op.
on reh'g).
64 Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex. App.-Houston [1st Dist.]), citing McClendon, 509 S.W.2d at 855-57 and Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.-Houston [1st Dist.] 1990, pet. refd).
65 See Jackson v. State, 50 S.W.3d 579, 591-92 (Tex. App.-Fort Worth 2001, pet. refd); Rodriguez v. State, 5 31 S.W.3d 359, 363 (Tex. App.-San Antonio 2000, pet. refd).
lack of reformation," then the conviction more than ten years old may be
analyzed under Rule 609(a)'s "outweighs" standard rather than Rule
609(b)'s "substantially outweighs" standard.66
2. Argument
The trial court erred when it excluded the victim's remote convictions
of prostitution. Rj^LssiSpjaajs^ felony probatiojLJpjL,
possession of a controlled substance at jyiaJime^Mtrial.67 On voir dire
examination by Appellant's attorney, Spears admitted to being on deferred
adjudication out of Wharton County for a felony theft.68 In addition, in 2005
she was convicted^ot,resisiing,.ar,reS;t.69 In 1999, Spears was convicted of
prostitution in Houston, Texas.70 Evidence exists that Spears failed to
reform her character. While Rule 609(b) renders a prior conviction
presumptively inadmissible if it is one for which the witness has been
66 See Jackson, 50 S.W.3d at 591- 92; Rodriguez, 31 S.W.3d at 363;
Hernandez, 976 S.W.2d at 755-56.
67 R.R. Vol. 3, P- 17
68 R.R. Vol. 3, P- 59
69 Id.
70 Id.
* • ) .*.
CJB\
released from custody more than ten years before trial, Spears' continued
failure to reform removes the taint of her prior conviction of prostitution.
The Court failed to consider the tacking of the prostitution charge to her
other crimes and thus failed to take into the account Rule 609(a)'s
"outweighs" standard rather than Rule 609(b)'s "substantially outweighs"
standard.71
71 See Jackson, 50 S.W.3d at 591- 92; Rodriguez, 31 S.W.3d at 363;
Hernandez, 976 S.W.2d at 755-56.
« • I •-
^!_^9
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellant John Edward
Holmes respectfully requests that this Court REVERSE the trial court's
judgment and REMAND the matter for a new trial in accordance with the
presented issues. Appellant prays for all relief at law or in equity to which
he is entitled.
Respectfully submitted,
NAVARRETE & SCHWARTZ, P.C. Attorneys at Law 1007 W.Texas Ave. Midland, Texas 79701 Tel: (432) 279-1479 Fax:(432)279-1478
CHRISTINE SCHWARTZ State Bar No. 24056733 Attorney For Appellant
24
<4 «0 *•
CERTIFICATE OF SERVICE
This is to certify that on November 13, 2014, a true and correct copy
of the above and foregoing document was served on Appellee, The State of
Texas, by and through Ms. Teresa Clingman, Midland County District
Attorney, 500 N. Loraine, 2nd Floor, Midland, Texas, by United States mail,
first class, in accordance with Rule 9.5 of the Texas Rules of Appellate
Procedure.
Christine Schwartz
•<*«•#-
IN THE COURT OF APPEALS
11th DISTRICT OF TEXAS
Eastland, Texas
JOHN EDWARD HOLMES, §
t
§
Appellant, §
§
v. § NC NO. 11-14-00143-CR
§ §
THE STATE OF TEXAS, § §
Appellee. §
CERTIFICATE OF COMPLIANCE
I certify the Appellant's Brief was prepared with Microsoft Word 2011 and that according to that program's word-count function, the sections covered by Tex. R. App. P. 9.4(i)(3) contains 3.582 words. I further certify the body text is 14 point font.
Christine Schwartz Attorney for Appellant