Jason Michael Swarm v. State

Opinion

AFFIRM; Opinion Filed April 28, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00529-CR

JASON MICHAEL SWARM, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-80775-2017

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Schenck Jason Michael Swarm appeals his conviction for aggravated sexual assault of

a child under the age of fourteen. In three issues, appellant challenges the sufficiency

of the evidence to support his conviction and complains the trial court erred by

denying his request for a mistrial and by denying him the right to cross-examine a

State’s witness. We affirm the trial court’s judgment. Because all issues are settled

in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4. BACKGROUND

In 2002, appellant pleaded guilty to indecency with a five-year-old child by

sexual contact. Ultimately, appellant served nearly five years in juvenile detention1

and was required to register as a sex offender for that offense. In July 2008 and

again in February 2009, appellant failed to register as a sex offender. He also

committed the offense of assault family violence in February 2009. Appellant

pleaded guilty to all three offenses in separate proceedings and was sentenced to

confinement in all three. In July 2010, appellant was released to a halfway house

where he stayed until November 2010.

In late 2010, appellant met T.C., a friend of his sister’s, and soon began a

relationship with T.C. T.C. was a widow who lived with her daughter L.C. and

L.C.’s paternal grandparents, as well as her brother-in-law and his three sons. T.C.’s

sister-in-law R.A. often visited her parents (L.C.’s grandparents) with her daughter

M.A., but R.A. and her husband would stay at a hotel while M.A. and her siblings

stayed overnight at their grandparents’ house.

M.A. was born in April 2001. According to R.A., M.A. has high-functioning

Asberger’s. R.A. testified M.A. has a flat vocal tone, is “not great with eye contact,”

and is socially awkward.

1 Appellant was fifteen years old at the time of the offense.

–2– In the fall of 2016, during a discussion between R.A. and M.A. about whether

to send M.A. to therapy for depression, M.A. confided in her mother that appellant

had touched her inappropriately and illegally when she was nine or ten years old.

R.A. asked M.A. if she wanted to report appellant’s actions, and M.A. said she did

not want to do so. R.A. then mentioned that L.C. lived with appellant and T.C. M.A.

decided to report, “because I don’t want that to happen to [L.C.].” In October 2016,

M.A. and her mother reported that appellant had touched her inappropriately

approximately five or six years previously. In a forensic interview, M.A. described

appellant’s inappropriate and illegal conduct, stating it occurred at her grandparents’

house.

Appellant was indicted with aggravated sexual assault of a child younger than

fourteen years. Appellant pleaded not guilty, and the case proceeded to trial before

a jury who found appellant guilty as charged. The trial court assessed appellant’s

punishment at twenty-five years’ confinement, and this appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

We begin with appellant’s third issue, in which he contends the evidence is

insufficient to support his conviction. Appellant argues there is no evidence of one

of the elements of the offense and complains the record evidence established he was

imprisoned on the date of the offense listed in the indictment. Appellant further

–3– urges the unlikelihood of the location of the offense and challenges the credibility of

M.A.

When reviewing whether there is legally sufficient evidence to support a

criminal conviction, we view the evidence in the light most favorable to the

prosecution, asking whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. See Murray v. State, 457 S.W.3d

446, 448 (Tex. Crim. App. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). This standard tasks the factfinder with resolving conflicts in the testimony,

weighing the evidence, and drawing any reasonable inferences the evidence might

support. See id.

A court should measure the sufficiency of evidence by the elements of the

offense as defined by the hypothetically correct jury charge for the offense

charged. Horton v. State, 394 S.W.3d 589, 592 (Tex. App.—Dallas 2012, no pet.)

(quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). As relevant

here, a person commits the offense of aggravated sexual assault of a child if the

person intentionally or knowingly causes the penetration of the child’s sexual organ

by any means and the child is younger than fourteen years at the time of the offense.

See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B). The testimony of a child

victim alone is sufficient to support a conviction. See TEX. CODE CRIM. PROC. ANN.

art. 38.07(a); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet.

ref’d). –4– Appellant challenges whether the evidence establishes he caused the

penetration of M.A.’s sexual organ. After reviewing the record in the light most

favorable to the prosecution, we conclude a rational jury could have found the

essential elements of the crime beyond a reasonable doubt. M.A.’s testimony

supports the charge in the indictment, which tracked the statutory language of the

penal code. See PENAL CODE ANN. § 22.021(a)(1). As long as a child communicates

to the factfinder that the touching occurred on a part of the body within the definition

of the statute, the evidence is sufficient. Jones v. State, 428 S.W.3d 163, 169 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); see also Lee, 186 S.W.3d at 655 (child

testimony alone is sufficient to support conviction).

Appellant next challenges the sufficiency of the evidence to support the date

of the offense. He argues the evidence shows he was not released from prison until

July 2010, so he could not have committed the offense as alleged to have been

committed on June 1, 2010.

The State is not required to allege a specific date in the indictment. Santibanez

v. State, No. 05-18-00843-CR, 2019 WL 5615150, at *2 (Tex. App.—Dallas Oct.

30, 2019, pet. ref’d) (mem. op., not designated for publication) (citing Sledge v.

State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997) (en banc.)). It is well-settled

the “on or about” language of an indictment allows the State to prove a date other

than the one alleged in the indictment as long as the date is anterior to the

presentment of the indictment and within the statutory limitation period. Id. Here, –5– the indictment alleged appellant committed the sexual act “on or about the 1st day

of June, 2010.” The grand jury returned the indictment on March 16, 2017. There

is no statute of limitations for aggravated sexual assault of a child. See CRIM. PROC.

ANN. art. 12.01(1)(B). Therefore, the State was required to prove the offense

occurred before March 16, 2017.

The record reflects M.A. made an outcry to her mother in October 2016 that

appellant had touched her illegally and inappropriately five or six years previously.

When interviewed by the forensic interviewer, M.A. reported the assault occurred

when she was nine or ten years old and in the fourth or fifth grade. The record

established M.A. was born in April 2001, so she would have been nine years old in

2010 and ten years old in 2011. Although appellant testified he did not meet M.A.

until 2013, a rational juror could have credited M.A.’s testimony over his. Thus, a

rational jury could have found appellant abused M.A. prior to presentment of the

indictment and within the statute of limitations.

Appellant makes other arguments that go towards the weight of the evidence

and M.A.’s credibility. He challenges the sufficiency of the evidence to support the

location of the offense, arguing he was unlikely to have the opportunity to abuse

M.A. in the family room of a large house in which as many as ten family members

lived. Appellant also points out inconsistencies in M.A.’s testimony and her motive

for reporting the abuse. As for appellant’s arguments regarding M.A.’s credibility

–6– and the weight of the evidence, the jury assessed her credibility, weighed the

evidence, and found in favor of the State. See Jackson, 443 U.S. at 319.

Accordingly, we overrule appellant’s third issue.

II. Denial of Mistrial

In his first issue, appellant argues the trial court erred in failing to grant a

mistrial after a witness testified about inadmissible extraneous offense information.

During direct examination, the prosecutor asked R.A. to describe how she

decided to report the inappropriate conduct M.A. had told her and what she did to

report it.

Q: Um, and tell me a little bit about how you decided to go report it and what you did?

A: Um, I had to figure out where I needed to go. Do I go to Frisco, because it happened in Plano. Do I go to the Plano Police Department. Or do I go to Garland, because at the time, I think, he lived in Garland. He was on probation for something I’m not sure.

Appellant’s counsel objected to R.A.’s testimony and asked for “a mistrial

and at the very least a limiting instruction on what this witness has just testified

about.” The trial court excused the jury and outside the presence of the jury, the trial

court denied the request for a mistrial but, “I’ll instruct the jury to disregard the

statements.” Appellant’s counsel objected to the denial of the request for mistrial as

follows:

DEFENSE COUNSEL: I object to the Court’s failure to grant a mistrial because of the witness having stated to the jury that the defendant was on probation. That is a fact that regardless of the Court’s instruction,

–7– the jury will not put that out of their minds. It’s going to leave questions in their minds that cannot be answered –

COURT: I think what you’re doing is objecting to my ruling now.

DEFENSE COUNSEL: Yes, I’m objecting to your ruling and I’m objecting to the fact that the witness brought up in front of the jury that he was on probation. And there is no curative instruction that will rectify that harm, that will rectify the fact that the jury heard it. Any curative instruction will not remove that sentence from their minds. And a mistrial should be granted.

COURT: Well, I’m not changing my ruling. I’m going to deny the mistrial. I’m going to instruct the jury to disregard the last statement of the witness.

When the jury returned, the trial court instructed the jury to disregard the R.A.’s

statement that was in response to the State’s last question “for all purposes.”

We review a trial court’s ruling on a motion for mistrial for abuse of

discretion. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We

view the evidence in the light most favorable to the trial court’s ruling and uphold

the trial court’s ruling if it was within the zone of reasonable disagreement. Id. We

may not substitute our judgment for that of the trial court, but rather we decide

whether the trial court’s decision was arbitrary or unreasonable. See id.

A mistrial is appropriate in “extreme circumstances” for a narrow class of

highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884

(Tex. Crim. App. 2009). Whether an error requires a mistrial must be determined

by the particular facts of the case. Id. Because it is an extreme remedy, a mistrial

should be granted “only when residual prejudice [would] remain[]” after less drastic

–8– alternatives are explored. Id. Less drastic alternatives include instructing the jury

“to consider as evidence only the testimony and exhibits admitted through witnesses

on the stand,” and, questioning the jury “about the extent of any prejudice,” if

instructions alone do not sufficiently cure the problem. Id.

To determine whether prejudicial testimony warrants a mistrial, we consider

(1) the severity of the misconduct and magnitude of the prejudicial effect, (2) the

curative measures taken, and (3) the certainty of conviction absent the

misconduct. Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).

Here, R.A.’s statement about her belief that appellant was on probation in

October 2016 was not so inherently inflammatory as to be incapable of being cured

by an instruction to disregard. See Fernandez v. State, No. 05-16-00355-CR, 2017

WL 4987668, at *2 (Tex. App.—Dallas Nov. 2, 2017, no pet.) (mem. op.) (comment

about appellant breaking in at gunpoint cured by prompt instruction to disregard

where jury aware of volatile nature of appellant’s relationship with testifying

witness). The record shows the State’s question of R.A. was how she decided to

report her daughter’s outcry and the steps she took. Nothing about the question

appears designed to elicit any commentary on appellant’s probationary status.

R.A.’s response includes mention of appellant’s probationary status as part of her

thought process on which police department to contact, not to somehow inflame the

minds of the jury. The prejudicial effect of the statement was minimal in light of

–9– appellant’s own testimony on direct and cross-examination regarding his criminal

history.

The trial court took prompt curative measures by instructing the jury not to

consider the testimony “for all purposes.” In general, a prompt instruction to

disregard cures the prejudicial effect of inadvertent references to extraneous

offenses. See Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985) (an

accomplice witness’s inadvertent reference to extraneous murders was curable with

an instruction to disregard). In fact, it is well-settled that testimony referring to or

implying extraneous offenses can be rendered harmless by an instruction to

disregard by the trial judge, unless it appears the evidence was so clearly calculated

to inflame the minds of the jury or is of such damning character as to suggest it

would be impossible to remove the harmful impression from the jury’s mind. See

Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).

As to the certainty of conviction, the jury heard M.A.’s testimony describing

appellant’s inappropriate and illegal contact with her, as well as the testimony of the

forensic interviewer whose description of M.A.’s outcry to her was consistent with

M.A.’s testimony. Although M.A. was unable to state whether the conduct occurred

when she was nine or ten years old, her description of appellant’s conduct was

substantially the same as that reported by the forensic interviewer. Through

appellant’s own testimony, the jury heard about his plea of guilty as a juvenile to

indecent contact with a five-year-old child. The jury also heard appellant’s –10– testimony denying the underlying conduct in this case and denying ever meeting

M.A. until 2013, as well as the testimony of appellant’s mother that appellant had

denied committing the offense to her. While the evidence is not overwhelming,

appellant’s conviction was reasonably certain absent the complained-of statement.

Accordingly, we conclude the trial court did not abuse its discretion in

denying a mistrial and overrule appellant’s first issue.

III. Cross-Examination Regarding Prior Involvement with CPS

In his second issue, appellant argues the trial court erred by denying him the

opportunity to question R.A. regarding the multiple contacts M.A. had with Child

Protective Services (CPS) prior to her outcry in October 2016. Appellant urges this

evidence should have been presented to the jury to show that M.A. met with CPS

one month before her outcry where she was questioned by CPS about any possible

abuse, but that she did not make any allegation of emotional, physical, or sexual

abuse at that time. Appellant argues he would have used this evidence to cross-

examine and impeach M.A. The State responds that appellant failed to preserve his

argument because, although his counsel made a bill of proof, his counsel failed to

articulate the legal basis for that offer.

The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . .” U.S. CONST., amend. VI. This right is made applicable

to the states by the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403

–11– (1965). Cross-examination provides the defendant an opportunity to test the

believability of a witness and the truth of his testimony. Davis v. Alaska, 415 U.S.

308, 316 (1974). Although the constitutional provision guarantees criminal

defendants the right to confront and cross-examine witnesses, this right is not

absolute. See Porter v. State, 578 S.W.2d 742, 745 (Tex. Crim. App. 1979). The

trial court maintains broad discretion to impose reasonable limits on cross-

examination to avoid harassment, prejudice, confusion of the issues, endangering

the witness, and the injection of cumulative or collateral evidence. Henley v. State,

493 S.W.3d 77, 95 (Tex. Crim. App. 2016).

We review a trial court’s decision to limit a defendant’s cross-examination

under an abuse of discretion standard. Matchett v. State, 941 S.W.2d 922, 940 (Tex.

Crim. App. 1996), cert. denied, 521 U.S. 2487 (1997). We will reverse the court’s

ruling when the court acts arbitrarily and unreasonably, without reference to guiding

rules or principles of law, and appellant has been harmed. Love v. State, 861 S.W.2d

899, 901–904 (Tex. Crim. App. 1993).

The record reflects that defense counsel requested to take up some matters

outside the jury’s presence. Once the jury was excused, defense counsel stated, “we

need to make the bill before I can make the motions that I would normally make at

this point.” Then, outside the presence of the jury, defense counsel questioned R.A.

regarding whether M.A. had been interviewed by CPS in the past and the content of

those interviews. R.A. testified M.A. had been interviewed by CPS regarding –12– matters unrelated to her outcry. According to R.A.’s testimony, the CPS interviews

of M.A. were usually “one-on-one,” R.A. was not present during the interviews, and

R.A. was not aware of what was discussed other than, “usually when they were

asking questions, it was about the topic that they were investigating.”

After the cross-examination of R.A., the court discussed whether defense

counsel could cross-examine M.A. on whether she was depressed at the time of her

outcry, but there was no discussion regarding impeaching M.A. on the content of the

CPS interviews.

Even assuming appellant’s issue was properly preserved for our review,

defense counsel’s questioning of R.A.’s mother did not reveal she had any personal

knowledge of the contents of M.A.’s interviews with CPS. See Tex. R. Evid. 602

(requiring sufficient evidence to support finding witness has personal knowledge of

matter before witness may testify regarding that matter). Indeed, the record reflects

the following exchange:

DEFENSE COUNSEL: Are you aware that in some of the interviews with Marissa, there’s an expressed statement that she made no outcry of sexual abuse?

R.A.: No.

DEFENSE COUNSEL: So you’re not aware that on September the 2nd of 2016, less than a month before the outcry in this case, CPS interviewed Marissa and she said Marissa did not make an outcry of emotional, physical, or sexual abuse. Did you realize that this existed?

–13– R.A. did not testify regarding M.A.’s lack of, or denial of, any allegation of abuse to

CPS, and thus, the record does not contain any of the testimony appellant argues he

would have used to impeach M.A. Moreover, the record reflects defense counsel

questioned M.A. regarding her interviews with CPS, specifically asking her whether

she remembered ever saying anything about appellant’s assault in an interview with

CPS and how many times she was interviewed by CPS. M.A. testified she was

interviewed several times by CPS and testified she was never asked about whether

she was sexually abused.

Accordingly, we cannot conclude that the trial court abused its discretion and

overrule appellant’s second issue.

CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

DO NOT PUBLISH Tex. R. App. P. 47 190529F.U05

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JASON MICHAEL SWARM, On Appeal from the 416th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 416-80775- No. 05-19-00529-CR V. 2017. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Schenck. Justices Osborne and Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 28th day of April, 2020.

–15–