Klein v. State

191 S.W.3d 766, 2006 Tex. App. LEXIS 2790, 2006 WL 878245
CourtCourt of Appeals of Texas
DecidedApril 6, 2006
Docket2-03-390-CR
StatusPublished
Cited by35 cases

This text of 191 S.W.3d 766 (Klein v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klein v. State, 191 S.W.3d 766, 2006 Tex. App. LEXIS 2790, 2006 WL 878245 (Tex. Ct. App. 2006).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

BOB McCOY, Justice.

After reviewing the State’s petition for discretionary review, we modify our opinion and judgment in this appeal. See Tex. R.App. P. 50. We withdraw our February [771]*7712, 2006 opinion and judgment and substitute the following.

This case involves allegations by a child of sexual assault by a parent, which allegations were recanted over a period of time before, and during, the trial of the parent.

Under a single indictment, a jury convicted Appellant Nicholas George Klein of eight counts of aggravated sexual assault of a child, his daughter.1 The jury assessed a punishment of ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice on Count I of the indictment and assessed a ten-year probated sentence on each of the remaining seven counts. The trial court sentenced Klein accordingly in two judgments, one for Count I and one for the remaining Counts II through VIII. Klein brings six points on appeal, challenging the legal and factual sufficiency of the evidence, as well as certain evidentiary rulings of the trial court, and the stacking of the currently-running probated sentences onto the sentence of confinement on the first count. Because we hold that the evidence is legally insufficient to support the verdicts on Counts I, II, III, IV, V, and VI, we reverse the judgments as to those counts and enter an acquittal on each count. Regarding Counts VII and VIII, we hold that the trial court reversibly erred in admitting the testimony of Dawn Todd and Officer Cory Cook. We therefore reverse the judgment as to Counts VII and VIII and remand those two counts to the trial court for a new trial consistent with this opinion.

I. Sufficiency of the Evidence

A. Legal Sufficiency

In his first point, Klein complains that the evidence is legally insufficient to support the verdicts. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code CRiM. PROC. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert, denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). The standard of review is the same for direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App.2001); Kutzner v. State, 994 S.W.2d 180,184 (Tex.Crim.App.1999).

In his brief, Klein contends that the only probative evidence came from the outcry witness because the other evidence of his guilt — the testimony of CPS investigator Dawn Todd, Carrollton police officer Cory [772]*772Cook, and S.A., Miriam’s classmate — -was inadmissible hearsay admitted with no immediate limiting instruction, even though defense counsel both objected and requested a limiting instruction. The Texas Court of Criminal Appeals has recently addressed the interplay between the issues of admissibility and sufficiency:

Sometimes a claim of trial court evi-dentiary error and a claim of insufficient evidence overlap so much that it is hard to separate them. For example, suppose that the identity of a bank robber is proven through the testimony of one and only one witness at trial. Suppose further that this witness’ testimony is rank hearsay: ‘Little Nell told me that Simon was the bank robber.’ On appeal a defendant might raise a hearsay claim and a claim of sufficiency of the evidence to prove identity. He will have the right to have the hearsay question considered on its merits only if he objected properly at trial; he will have the right to have the question of the sufficiency of evidence to prove identity considered on its merits whether or not he objected.
But an appellate court must consider all evidence actually admitted at trial in its sufficiency review and give it whatever weight and probative value it could rationally convey to a jury. Thus, even if the trial court erred in admitting the witness’ testimony of Little Nell’s out-of-court statement, the reviewing court must consider that improperly-admitted hearsay in assessing the sufficiency of the evidence to prove the bank robber’s identity. As Professors Dix and Dawson explain: ‘[a]n appellant ... is not entitled to have an appellate court first consider the appellant’s complaints concerning improper admitted evidence and, if it resolves any of those in favor of the appellant, to then, second, consider the sufficiency of the properly-admitted evidence to support the conviction.’ There is much logic in that rule:
This rule rests in large part upon what is perceived as the unfairness of barring further prosecution where the State has not had a fair opportunity to prove guilt. A trial judge’s commission of trial error may lull the State into a false sense of security that may cause it to limit its presentation of evidence. Erroneous admission of hearsay evidence, for example, may cause the State to forego offering other evidence that would ultimately prove admissible.
In our example, had the judge excluded the hearsay identification evidence, the State might have put on other evidence to prove identity. The remedy lies in a new trial, not an acquittal for insufficient evidence, because ‘[t]he risk of frustrating the State’s legitimate interest in a full opportunity to prove guilt, in any case, outweighs the defendant’s interest in being subjected to trial only once.’
Both litigants and reviewing courts should be careful to distinguish claims of improperly admitted evidence (trial error) from legal insufficiency of all admitted evidence — even improperly admitted evidence. This Court has not always been sufficiently careful in that regard and therein lies the problem in this case.

Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App.2004). Consequently, in addressing the legal sufficiency of the evidence, we must temporarily put aside Klein’s complaints of trial error and consider all admitted evidence in the light most favorable to the verdicts.

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Klein v. State
191 S.W.3d 766 (Court of Appeals of Texas, 2006)

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Bluebook (online)
191 S.W.3d 766, 2006 Tex. App. LEXIS 2790, 2006 WL 878245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-state-texapp-2006.