COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-250-CV
IN
THE MATTER OF C.J.M.
------------
FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
OPINION*
Appellant
C.J.M. pled true and was adjudicated delinquent based on his aggravated sexual
assault of a child under fourteen years of age. Because he was subject to a
determinate sentence, he elected to have a jury decide his disposition.1 The jury assessed his disposition at ten years’
commitment in the Texas Youth Commission with a possible transfer to the
Institutional Division of the Texas Department of Criminal Justice,2 and the trial court entered an order of commitment
accordingly. Appellant brings one point on appeal, contending that the trial
court abused its discretion by admitting evidence during the disposition phase
of an extraneous unadjudicated offense Appellant allegedly committed against
another child. Because we agree with Appellant that the trial court abused
its discretion by admitting the extraneous evidence and that the evidence harmed
him, we reverse the judgment on disposition and the order of commitment and
remand this case for a new disposition hearing.
Background
Facts
Appellant
pled true before a jury to the aggravated sexual assault of a seven-year-old
girl, C.S. The jury found that he was delinquent. During the
disposition phase, the State called L.J., a five-year-old girl, to the
stand. Appellant timely objected to her testimony “based on 51.17 of the
Texas Family Code, which specifically says that the Texas Rules of Evidence as
well as Chapter 38 of the Code of Criminal Procedure appl[y]” and “that this
is an alleged extraneous offense which is not allowed to be admitted into
court.” Appellant secured a running objection on these grounds to the
child’s testimony. The trial court admitted the evidence before the jury
over Appellant’s objection and without giving a timely limiting
instruction. L.J., Appellant’s cousin, ultimately testified that when
she was four years old, Appellant penetrated her vaginally and anally with his
penis. L.J.’s aunt and guardian, Brandy Broushard, confirmed that L.J. had
made an outcry against Appellant and discussed the changes in L.J. that were
allegedly related to Appellant’s actions. Appellant’s counsel secured
a running objection under Rule 404 to Broushard’s testimony. The State
questioned Appellant about the alleged extraneous act when he testified,
resulting in his asserting his Fifth Amendment right not to incriminate himself
before the jury. Evidence of other, less serious bad acts, adjudicated and
unadjudicated, was also admitted but is not complained of here. The State
relied on the evidence of the alleged aggravated sexual assault against L.J. in
its closing argument. The limiting instruction in the charge provided that
the jury should not consider the evidence of extraneous crimes or bad acts
unless they had been proven beyond a reasonable doubt. Appellant timely
appealed.
Extraneous
Offense Evidence at Disposition
As
both parties point out, had Appellant been certified to stand trial as an adult,
Article 37.07 of the Texas Code of Criminal Procedure would have governed.
That statute allows the admission of,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt by
evidence to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been charged
with or finally convicted of the crime or act.3
But
Chapter 37 of the Texas Code of Criminal Procedure is not applicable to juvenile
proceedings.4 The juvenile justice code
expressly provides,
51.17. Procedure and
Evidence
(a)
Except for the burden of proof to be borne by the state in adjudicating a child
to be delinquent or in need of supervision under Section 54.03(f) or otherwise
when in conflict with a provision of this title, the Texas Rules of Civil
Procedure govern proceedings under this title.
.
. . .
(c)
Except as otherwise provided by this title, the Texas Rules of Evidence
applicable to criminal cases and Chapter 38, Code of Criminal Procedure, apply
in a judicial proceeding under this title.5
Chapter
38 of the Texas Code of Criminal Procedure expressly allows evidence of an
accused’s extraneous offenses or acts against the same complainant in the case
with which he is charged,6 but the chapter does not
address extraneous offense evidence involving a different complainant. The
juvenile justice code does not otherwise speak to the issue before us. We
therefore must resort to the Texas Rules of Evidence.7
As
the State points out, Texas Rule of Evidence 404(b), which specifically governs
the admissibility of extraneous offenses, does not speak to the admissibility of
extraneous offenses in the punishment phase of criminal cases.8
Rule 404(b) provides that
[e]vidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.9
The
State argues that there appears to be a gap in the statutory law and that we
should fill the gap ourselves by applying Article 37.07 to determinate
sentencing cases, not Rule 404(b), because juveniles who are subject to
determinate sentencing commit “adult” crimes and should be treated like
adults. But we cannot usurp the Texas Legislature’s power.10 Until the Texas Legislature or the Texas Supreme
Court otherwise instructs us, we shall follow section 51.17 of the juvenile code
and apply the rules of evidence applicable to criminal cases to issues of
admissibility at the disposition phase of all juvenile cases. Rule 404(b)
is applicable to criminal cases.11
At
the time of the admission of the evidence, Appellant had already pled true to
the allegations in the petition to adjudicate and had already been found
delinquent by the jury. No exception under Rule 404(b) would allow the
evidence about L.J. to come in, and, indeed, the State did not advance a Rule
404(b) exception for offering the evidence, either at trial or here. The
only purpose for offering the evidence was to show that Appellant, while on
probation, had sexually assaulted another young child just months earlier than
the offense alleged in the petition to adjudicate. That is, the State
wanted to show that Appellant was someone who would continue to sexually assault
young girls unless he was confined—he would act in conformity with his
character. We therefore hold that the trial court abused its discretion by
admitting the evidence in violation of Rule 404(b).
Harm Analysis
Having
found error, we must conduct a harm analysis to determine whether the error
calls for reversal of the judgment. We agree with both parties and several
of our sister courts that harm in juvenile appeals from determinate sentences
should be analyzed under Rule 44.2. 12
Because the error is not constitutional,13 we apply
Rule 44.2(b) and disregard the error if it does not affect Appellant’s
substantial rights.14 A substantial
right is affected when the error had a substantial and injurious effect or
influence in determining the jury’s verdict.15
In making this determination, we review the record as a whole.16
The
record shows that Appellant, sixteen years old at the time of trial, had been
classified as mentally retarded since he was nine years old and functioned at
the level of an eight-year-old. He had also been diagnosed as having
bipolar, attention deficit hyperactivity, and oppositional/defiant
disorders. His own upbringing had been marred by sexual and physical
abuse, and the juvenile detention center nurse testified that he was scarred
from head to foot.
At
the time of the sexual assault of C.S., which involved oral-genital contact,
vaginal and anal digital penetration, and anal penetration with his penis,
Appellant was at the home of his mother, who allowed him to smoke marijuana and
drink alcohol. He was also taking his prescription medications. He
testified that at the time, he did not know his conduct was wrong or that he
would get in trouble. Also, at the time of the offense, Appellant was on
juvenile probation for theft, assault bodily injury, and burglary of a
habitation. There was evidence that he was often hard to control, both in
and out of institutional settings. None of these other extraneous offenses
and bad acts, however, indicated that Appellant was a repeat sexual offender of
young girls.
In
his closing argument, the prosecutor emphasized the alleged sexual assault
against L.J. as much, if not more than, the charged sexual assault against C.S.,
the theme of his argument being that Appellant could not help himself, that he
would go on sexually assaulting little girls if not confined.
Based
upon our review of all the evidence, as discussed above, we must conclude that
the trial court’s error in admitting the evidence about the alleged extraneous
offense had a significant or injurious effect on the jury’s verdict such that
Appellant’s substantial rights were affected.17
We sustain Appellant’s sole point.
Conclusion
Having
sustained Appellant’s point, we reverse the disposition judgment and the order
of commitment and remand this case to the trial court for a new trial on
disposition.
LEE
ANN DAUPHINOT
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
LIVINGSTON,
J. filed a concurring opinion.
DELIVERED:
June 16, 2005
COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO.
2-04-250-CV
CONCURRING OPINION
While
I agree with the conclusion the majority opinion reaches, I respectfully write
separately to make a couple of observations.
When
a statute is clear and unambiguous, we “should give the statute its common
meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503,
505 (Tex. 1997); see also Sisk v. State, 131 S.W.3d 492, 494 (Tex. Crim.
App. 2004); Hernandez v. State, 127 S.W.3d 768, 771 (Tex. Crim. App.
2004). When language in a statute is unambiguous, we will seek the intent
of the legislature as found in the plain and common meaning of the words and
terms used. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; In
re K.L.V., 109 S.W.3d 61, 65 (Tex. App.—Fort Worth 2003, pet. denied). We
should not adopt a construction that would render a law or provision
meaningless. Centurion Planning Corp. v. Seabrook Venture II, No.
01-02-00518-CV, 2004 WL 2823125, at *3 (Tex. App.—Houston [1st Dist.] Dec. 9,
2004, no pet. h.).
While
I agree that there is a gap in the juvenile justice code’s instructions to the
courts on what additional rules of criminal procedure apply in a Title III
action, I believe there are two justifications for reaching the conclusion that
we reach today.
First,
as observed by the majority, section 51.17(c) of the juvenile justice code tells
us specifically that courts may apply and use chapter 38 of the code of criminal
procedure in Title III cases. Tex. Fam. Code Ann. § 51.17(c) (Vernon
Supp. 2004-05). Had the legislature so desired, it could have included a
reference to chapter 37 of the code of criminal procedure as well, but it did
not do so. Under the rules of statutory construction, we should not assume
the omission was unintentional. See Upjohn Co. v. Rylander, 38 S.W.3d
600, 607 (Tex. App.—Austin 2000, pet. denied).
Second,
we also know under rule of evidence 609(d) that in juvenile justice proceedings
under Title III, evidence of prior juvenile adjudications are admissible in the
limited situation in which the witness is a party. Tex. R. Evid. 609(d). This
provision, not mentioned by appellant, the State, or the majority opinion, tells
us that during a juvenile proceeding, evidence of prior juvenile adjudications
against that particular juvenile are admissible to attack the juvenile’s
credibility if the juvenile testifies. Id. Thus, we have
clear authority from the supreme court to admit prior juvenile adjudications of
a witness/party during a pending juvenile proceeding of that witness/party, but
not prior extraneous, unadjudicated offenses. In this case, had the
extraneous offense testified to by L.J. been previously adjudicated against
C.J.M., it would have been admissible to attack C.J.M.’s credibility.
Since it had not yet been pursued to an adjudication, it was not admissible.
I
believe the unadjudicated offense was inadmissible for these additional reasons
and therefore concur in the majority opinion and judgment.
TERRIE
LIVINGSTON
NOTES
* Majority Opinion by Justice Dauphinot; Concurring Opinion by
Justice Livingston
Majority Opinion Notes:
1.
See Tex. Fam. Code Ann. §
54.04(d)(3) (Vernon Supp. 2004-05).
2.
See id.
3.
Tex. Code Crim. Proc. Ann. art.
37.07 § 3(a)(1) (Vernon Supp. 2004-05).
4.
See Tex. Fam. Code Ann. §
51.17(c) (Vernon Supp. 2004-05).
5.
Id. § 51.17(a)(c).
6.
See Tex. Code Crim. Proc. Ann.
art. 38.37 (Vernon 2005).
7.
See Tex. Fam. Code Ann. §
51.17.
8.
See Harrell v. State, 884 S.W.2d 154, 166 n.13 (Tex. Crim. App. 1994); Patton
v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pets. ref’d); Ramirez
v. State, 967 S.W.2d 919, 923 (Tex. App.—Beaumont 1998, no pet.).
9.
Tex. R. Evid. 404(b).
10.
See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004) (“That does
not give us the power (as the United State Supreme Court has stated) ‘to
legislate . . . to fill any hiatus Congress has left.’”) (quoting Touche
Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S. Ct. 2479, 2491
(1979)).
11.
See, e.g., Johnston v. State, 145 S.W.3d 215, 219 (Tex.
Crim. App. 2004).
12.
See Tex. R. App. P. 44.2, In
re J.H., 150 S.W.3d 477, 485 (Tex. App.—Austin 2004, pet. denied); In
re L.R., 84 S.W.3d 701, 707 (Tex. App.—Houston [1st Dist.] 2002, no pet.);
In re D.V., 955 S.W.2d 379, 380 (Tex. App.—San Antonio 1997, no pet.); In
re K.W.G., 953 S.W.2d 483, 488 (Tex. App.—Texarkana 1997, pet. denied); In
re D.Z., 869 S.W.2d 561, 565-66 (Tex. App.—Corpus Christi 1993, writ
denied).
13.
See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
14.
Tex. R. App. P. 44.2(b); see
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g),
cert. denied, 526 U.S. 1070 (1999); Coggeshall v. State, 961
S.W.2d 639, 642-43 (Tex. App.—Fort Worth 1998, pet. ref’d).
15.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos
v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall,
961 S.W.2d at 643.
16.
See Johnson, 967 S.W.2d at 417.
17.
See Curtis v. State, 89 S.W.3d 163, 170 (Tex. App.—Fort Worth 2002,
pet. ref’d).