COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00142-CR
MICHAEL JERRIAL IBENYENWA APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
OPINION ON STATE’S MOTION FOR REHEARING ----------
After considering the State‘s motion for rehearing, we grant the motion; we
withdraw our prior opinion, concurring and dissenting opinion, and judgment of
December 15, 2011, and we substitute the following opinion, concurring and
dissenting opinion, and judgment of the same date to clarify the proper
disposition of counts two through five.
In three points, appellant Michael Jerrial Ibenyenwa appeals from one
conviction for continuous sexual abuse, two convictions for aggravated sexual
assault, and two convictions for indecency with a child. He contends (a) that the statute allowing for the offense of continuous sexual abuse is unconstitutional
because it allows for a conviction upon a nonunanimous jury vote as to the
particular offenses constituting the elements of the crime, (b) that the trial court
reversibly abused its discretion by allowing the entirety of the child complainant‘s
interview to be viewed by the jury after the defense‘s cross-examination of the
interviewer, and (c) that the aggravated sexual assault and indecency convictions
are barred by double jeopardy. We affirm in part and reverse in part.
Constitutionality of Section 21.02 of the Penal Code
In his third point, appellant contends that the continuous sexual abuse
statute is unconstitutional under Article V, section 13 of the Texas Constitution,
and the Sixth Amendment of the United States Constitution as applied to states
through the Fourteenth Amendment, because it violates the jury unanimity
requirement set forth in those provisions. Appellant challenges the
constitutionally of the statute both facially and as applied. Appellant raised
neither challenge in the trial court.
A facial challenge to the constitutionality of a statute is a forfeitable right,
that is, it may be lost by the ―failure to insist upon it by objection, request, motion,
or some other behavior.‖ Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262 (1997). Although
the four-judge concurrence in Karenev held that the requirement that a facial
challenge to a statute be preserved is not absolute, the five-judge majority plainly
2 stated that ―[a] facial challenge to the constitutionality of a statute falls within the
third [Marin] category‖ and that ―a defendant may not raise for the first time on
appeal a facial challenge to the constitutionality of a statute.‖ 281 S.W.3d at 434.
We are bound to follow the majority opinion in the absence of language adopting
the concurrence. Cf. Haynes v. State, 273 S.W.3d 183, 186 (Tex. Crim. App.
2008) (relying on United States Supreme Court authority holding that a majority
opinion is one in which a single rationale enjoys the support of at least five
judges). Similarly, an ―as applied‖ constitutional challenge is also a forfeitable
right under Marin and must be preserved in the trial court during or after trial.
Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Garcia v. State, 887
S.W.2d 846, 861 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1005 (1995); see
also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011)
(holding that as applied challenge raised in pretrial motion is not sufficient to
preserve issue for review).
Accordingly, we conclude and hold that appellant did not preserve his
facial and as applied challenges to section 21.02 for our review. See Karenev,
281 S.W.3d at 434; Curry, 910 S.W.2d at 496; Williams v. State, 305 S.W.3d
886, 893 (Tex. App.––Texarkana 2010, no pet.).
We overrule appellant‘s third point.
3 Optional Completeness
In his first issue, appellant complains that the trial court abused its
discretion under rules of evidence 107 and 403 by admitting the entirety of the
child‘s interview in response to questioning by the defense.
Rule 107 permits the introduction of previously inadmissible evidence
when that evidence is necessary to fully explain a matter that has been raised by
the adverse party. Tex. R. Evid. 107; Walters v. State, 247 S.W.3d 204, 217–18
(Tex. Crim. App. 2007). It is designed to reduce the possibility of the jury
receiving a false impression from hearing only a part of some act, conversation,
or writing. Walters, 247 S.W.3d at 218. Rule 107 does not permit the
introduction of other similar, but inadmissible, evidence unless necessary to
explain properly admitted evidence. Id. Further, the rule is not invoked by the
mere reference to a document, statement, or act. Id. And rule 107‘s scope is
limited by rule 403, which permits a trial judge to exclude otherwise relevant
evidence if its unfair prejudicial effect or its likelihood of confusing the issues
substantially outweighs its probative value. Id.
The State called as a witness Stephanie Nick, a forensic interviewer who
interviewed the child. Nick did not have her notes regarding the interview, but
she did refresh her memory with a copy of a police report that the prosecutor
represented had the interview ―basically . . . transcribed.‖1 According to Nick, the
1 The report was not admitted into evidence.
4 child was able to tell her ―where it happened, specifically what room it happened
in, who was present, those sorts of things.‖ Nick testified that the child
remembered details such as that she was in kindergarten when the acts started,
that her clothes were off, and that ―she was asked if it felt good.‖ 2 After asking
Nick about the types of sensory details a child might remember, such as whether
a penis was hard or soft or whether anything came out of it, the prosecutor asked
whether the child was able to remember sensory details, and Nick answered
―Yes.‖ Nick also testified that the child did not show signs of having been
coached in her answers. According to Nick, the child identified appellant as the
perpetrator and denied that anyone else had abused her.
On cross-examination, Nick agreed with defense counsel that she was not
supposed to ask leading questions of the child, and then defense counsel asked
her, ―So you wouldn‘t consider [the question], ‗Did anything come out of his
private‘ to be leading?‖ Nick answered, ―No. That‘s a yes or no question.‖ In
addition, the following exchange occurred:
Q. During your interview with [the victim], she didn‘t remember what happened the first time that the alleged incident happened, did she?
A. That‘s correct, she did not.
Q. And she didn‘t remember what happened the last time the alleged incident happened.
A. She gave details as to what happened the last time.
2 Appellant did not object to this evidence.
5 Q. Didn‘t she initially say, ―I don‘t remember‖?
A. . . . Yes, she did initially say she did not remember.
Q. Okay. And your interview was only eight days after the last incident allegedly occurred.
A. That, I don‘t know.
Q. So you didn‘t know the . . . alleged incident was January 22nd. That‘s in your notes.
A. I don‘t have . . . my handwritten notes aren‘t here. What I do know is that she told me it happened in January of 2009. If she gave the exact date in the interview, I don‘t know.
Q. Okay. She seemed to have a decent memory, right?
A. Uh-huh.
Q. She remembered her kindergarten teacher‘s name, right?
A. Yes, she did.
Q. She remembered things around Halloween of the year before, right?
A. Correct.
Q. And she remembered her mom fixing coworkers‘ hair.
A. Yes.
Q. But she doesn‘t remember what happened the first or the last time you initially asked her.
A. That‘s correct. She said she did not remember.
Defense counsel also questioned whether Nick was trained to repeat the
child‘s answers during an interview; she said yes, she was so trained, for the
6 purpose of clarifying and assisting whoever is watching the interview (such as an
investigator) because sometimes the audio is bad. She denied that the
technique was for the purpose of ―reinforc[ing] the same thing over and over and
over with the child.‖ Defense counsel asked Nick whether she would be
surprised that she had repeated the child‘s answers 124 times during the 37
minute interview, and she answered yes. In addition, the investigator denied that
she was trained to ask the same question repeatedly if the first answer was no.
When asked, ―So you would be surprised to know you did that numerous times in
your interview?,‖ the investigator could not recall.3
When the State redirected, it asked to admit exhibit 34, the recording of the
videotaped interview, into evidence. Defense counsel objected on grounds that
―our main concern, Judge, is that they are going to now hear a complete 37
minutes of what we spent just asking one or two questions on, maybe two or
three questions on, that . . . those [follow-up] questions can be asked by the
State.‖ The State argued that the entire interview was admissible under rule 107
because the defense‘s questions gave the impression that the child was lying
and that the interviewer was reinforcing the child‘s testimony. The defense
intimated that it did not mind if the State asked follow-up questions regarding the
interview and the circumstances of the child‘s not being able to recall certain
incidents but that the entire interview should not be admitted.
3 The defense had also asked similar questions of a prior witness, Detective Garth Savage, who had watched the interview in another room.
7 We agree with the State that the defense left the impression that Nick had
possibly manipulated the interview by asking repetitive questions even though
she was not supposed to and that she excessively repeated the child‘s answers.
Although the defense argued that the State should just be allowed to ask follow-
up questions, the jury would not have had any yardstick by which to measure the
effect of Nick‘s questions and techniques on the child, which occurred before the
child testified at trial, other than by seeing the actual interview. See Mick v.
State, 256 S.W.3d 828, 830–32 (Tex. App.––Texarkana 2008, no pet.). And we
cannot agree that the defense‘s line of questioning regarding the interviewer‘s
techniques was ―minimal.‖ We conclude and hold that the trial court did not
abuse its discretion by admitting the interview under rule 107. Thus, we must
further review whether the trial court abused its discretion by admitting the
evidence over appellant‘s rule 403 objection.
Once an appellant objects on rule 403 grounds, the trial court must weigh
the probative value of the evidence to determine if it is substantially outweighed
by its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169
(Tex. Crim. App. 1997); Alami v. State, 333 S.W.3d 881, 889 (Tex. App.––Fort
Worth 2011, no pet.). A rule 403 balancing test includes the following factors:
(1) the inherent probative force of the proffered item of evidence along with (2)
the proponent‘s need for that evidence against (3) any tendency of the evidence
to suggest 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
8 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. Gigliobianco v. State, 210 S.W.3d 637, 641–
42 (Tex. Crim. App. 2006); Alami, 333 S.W.3d at 889. The rules of evidence
favor the admission of relevant evidence and carry a presumption that relevant
evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642,
652 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).
The interview was inherently probative to the issue of whether Nick‘s
technique amounted to ―coaching‖ the child and was the only evidence of
whether the child equivocated in the interview. Although she initially told Nick
that she did not remember what had happened, when asked whether she really
did not remember or whether she just did not want to talk about what had
happened, she admitted that she did not want to talk about what had happened.
Thus, the interview was inherently probative and necessary for the rule 107
purpose for which it was admitted.
Moreover, it was unlikely to distract the jury from the issues in the case.
The child told the interviewer that appellant put his private in her mouth more
than once but less than five times, that when he did that ―clear stuff‖ came out
and it was salty, that appellant put his private in her private so many times she
lost count, that he touched his private in front of her and made her touch his
private, and that he put his finger inside her private. She had testified to these
9 same things previously with most of the same detail with the exception of four
things: (1) she testified that appellant put his finger on her private rather than
inside, which she said in the interview, (2) she testified that appellant had put his
private on her ―butt,‖ which she did not say in the interview, (3) in the interview,
she said that appellant asked her when he was doing those things if they felt
good, but she did not testify to that at trial, and (4) in the interview she had said
that there were yellow sheets on the guest room bed at appellant‘s mother‘s
house, but at trial, she testified that she thought they were white sheets. The
issue of her credibility had been previously raised by the defense‘s cross-
examination in which the attorney asked questions regarding whether the child
was happy her mother was living with appellant and whether she liked being with
her aunt and uncle better.4 Although the recorded interview could be viewed as
bolstering the child‘s credibility because her answers in the interview were mostly
consistent with her testimony at trial, there were some inconsistencies, which the
jury was allowed to reconcile. Moreover, that was not the sole purpose for which
the DVD interview was admitted; as a result of the admission of the interview, the
jury was allowed to resolve for itself whether it believed the child had been
coached by Nick, her mother, or someone else. Finally, the DVD was only about
forty minutes long, so there was little danger of it taking an undue amount of time
from the remainder of the trial. Accordingly, we conclude and hold that the trial
4 At closing, however, the defense argued to the jury that there was no dispute that the child had been sexually assaulted, but the issue was by whom.
10 court did not abuse its discretion by admitting the evidence over appellant‘s rule
403 objection.
Because we conclude and hold that the trial court did not abuse its
discretion by admitting the interview under rules 107 and 403, we overrule
appellant‘s first point.
Double Jeopardy
The State concedes that if we overrule appellant‘s first and third points so
as to affirm appellant‘s conviction on count one, the continuous sexual abuse
count, we must reverse the remainder of the convictions for aggravated sexual
assault and indecency with a child. See U.S. Const. amend. V; Tex. Const. art. I,
§ 14; Tex. Penal Code Ann. § 21.02(e) (West Supp. 2011). Accordingly, we
sustain appellant‘s second point and vacate those four convictions as set forth
below.
11 Conclusion
Having overruled appellant‘s first and third points, we affirm his conviction
under count one for continuous sexual abuse. Having sustained his second
point, we vacate his convictions on counts two through three for aggravated
sexual assault and counts four through five for indecency with a child. See Tex.
R. App. P. 43.2(c); Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668,
1674 (1975).
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).
DAUPHINOT, J., filed a concurring and dissenting opinion.
PUBLISH
DELIVERED: March 22, 2012
12 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
CONCURRING AND DISSENTING OPINION ON STATE’S MOTION FOR REHEARING ----------
I agree with the State and the majority that affirming the conviction on
count one requires vacating the remainder of the convictions. But because the
majority has borrowed the Karenev majority‘s overly broad brush to paint its
analysis in affirming that conviction,1 I must respectfully dissent.
I adopt the Karenev concurring opinion, written by Judge Cochran and
joined by Judges Price, Womack, and Johnson, because it is a clear, concise,
1 See Karenev v. State, 281 S.W.3d 428, 432–34 (Tex. Crim. App. 2009). and more artfully drafted explanation of why technicalities should not trump the
Constitution than I am capable of writing:
There are two good reasons why appellate courts should entertain a facial challenge to the penal statute setting out the offense for which the defendant was convicted, even when it is raised for the first time on appeal:
(1) American law prohibits the conviction and punishment of a person under an unconstitutional penal statute; in other words, it is an ―absolute requirement‖ that a person be criminally punished only for the violation of a valid penal law; and
(2) Appellate courts are in at least as good a position as trial courts to review the purely legal question of whether a particular penal statute is facially unconstitutional.
First, I do not think that the majority is suggesting that it is quite acceptable to send someone to prison for violating an unconstitutional penal statute if that person failed to object to the statute‘s unconstitutionality in the trial court. But its language could well be misconstrued as allowing persons who are not guilty of violating any valid penal statute to be punished nonetheless if they failed to complain soon enough. The moral of that story would be: Because you were a slowpoke at noticing that you were not guilty of any valid criminal offense, we will punish you as if you really were guilty of some valid criminal offense. That is not the American way: every person has an absolute, fundamental, and unforfeitable right to be punished only for the violation of a valid criminal statute.
Second, the general rationale for requiring an objection in the trial court to preserve error on appeal simply does not apply when the claim is that the penal statute is facially unconstitutional and cannot be used to punish any person, now or in the future. The two main reasons for requiring a contemporaneous objection in the trial court are (1) to give the opposing party an opportunity to respond or cure the problem before it becomes error; and (2) to give the trial judge an opportunity to prevent the error from occurring. A third rationale is that ―judicial economy requires that issues be raised first in the trial court to spare the parties and the public the expense of a potentially unnecessary appeal.‖
2 The first two rationales do not apply when a penal statute defining the criminal offense is facially unconstitutional in its entirety. The statute cannot be repaired by the parties or the trial judge. The only two options at the trial level are to dismiss the charges or proceed with the prosecution.
The third rationale, conservation of scarce judicial resources, does apply when the prosecutor or judge agrees with the defendant that the penal statute is facially unconstitutional, the charges are dismissed, and there is no appeal from dismissal. But the likelihood of that occurring is minuscule. Trial judges very rarely declare a penal statute unconstitutional; prosecutors would generally be remiss if they failed to appeal a ruling that a legislatively enacted penal statute was unconstitutional and therefore unenforceable; and public policy is best served by a published appellate decision declaring a penal statute facially unconstitutional and therefore unenforceable against any person. Thus, while it is conceivable that requiring a defendant to complain of a penal statute‘s facial unconstitutionality in the trial court might save some [scarce] judicial resources, that expense is a very small price to pay when balanced against the bedrock American notion that we do not convict and punish people for unconstitutional crimes. Surely this Court would not, after the Supreme Court‘s decision in Lawrence v. Texas, uphold a sodomy conviction today even though the defendant had not complained in the trial court about the unconstitutionality of the ―still in the books‖ sodomy statute.2
If, as the majority holds in reliance on the five-judge majority in Karenev, a
person may be convicted of and sentenced to prison for violating a piece of
legislation that is repugnant to the Constitution solely because the trial lawyer
failed to make timely objection, we allow the protections of our Constitution to be
usurped by procedural technicalities. Is this another issue that cannot be raised
on direct appeal but may be raised by writ of habeas corpus? Is this really the
way we want to expend the overstretched resources of our judiciary, which
2 Id. at 436–40 (Cochran, J., concurring) (citations omitted).
3 although a branch of government equal to the legislative and the executive
branches,3 in its entirety is financed by only .373% of the total state budget?4
In our history, we have made slavery legal, and our courts have upheld
laws criminalizing miscegenation5 and sodomy.6 Often our communities believed
these laws were proper, and lawyers would not object to their constitutionality
because the laws were accepted by the community of which the lawyer was a
member.
What vehicle for objection does a defendant in a criminal case have for
making his objection to a law he believes to be unconstitutional if his lawyer
disagrees and refuses to object or simply fails to make the objection? Although
the Texas Constitution provides that ―[i]n all criminal prosecutions the accused
shall have . . . the right of being heard by himself or counsel, or both . . . ,‖7 courts
repeatedly deny the accused this right, holding that a defendant is not entitled to
3 Tex. Const. art. II, § 1. 4 Conference Comm., Report (3rd printing), Tex. H.B. 1, 82nd Leg., R.S. (May 26, 2011), available at http://www.lbb.state.tx.us/Bill_82/4_Conference/prt HB1_Conference_2011_SIG_Engross.pdf. 5 See, e.g., Frasher v. State, 3 Tex. Ct. App. 263, 276–78 (1877) (upholding former article 386 of our criminal code). 6 Lawrence v. State, 41 S.W.3d 349, 357–59, 362 (Tex. App.—Houston [14th] 2001, pet. ref‘d), rev’d, 539 U.S. 558, 578–79, 123 S. Ct. 2472, 2483–84 (2003). 7 Tex. Const. art. I, § 10 (emphasis added).
4 ―hybrid representation.‖8 The defendant himself can make no objection that will
preserve any complaint if that defendant is represented by counsel who either
does not realize there is a constitutional issue or does not believe that the statute
violates constitutional protections.
While I agree that a statute that is unconstitutional only as applied to a
defendant requires objection to bring the issue to the attention of the trial court, a
statute that is unconstitutional on its face can only be void and no statute at all.
Convicting a defendant of violating a void statute would be similar to convicting a
person of an offense that does not appear in our penal statutes. Does anyone
really believe that it is proper to convict a person of an act that does not appear
in our penal statutes merely because there is no objection?
This court is bound by the precedent established by the Texas Court of
Criminal Appeals, and the conscientious majority has followed the five-judge
majority in Karenev. I would hold, as has been the law for many years, that a law
that is facially unconstitutional is void9 and may be challenged at trial, on direct
8 See, e.g., Ex parte Bohannan, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011). 9 Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760, 115 S. Ct. 1745, 1752 (1995) (Scalia, J., concurring) (―[A] law repugnant to the Constitution is void, and is as no law.‖) (citation and internal quotation marks omitted); Ex parte Yarbrough (The Ku Klux Klan Cases), 110 U.S. 651, 654, 4 S. Ct. 152, 153 (1884); Ex parte Siebold, 100 U.S. 371, 375–377 (1879); Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (stating that a defendant is entitled to file for pretrial habeas relief when he alleges ―that the statute under which he . . . is prosecuted is unconstitutional on its face; consequently, there is no valid
5 appeal, by writ of habeas corpus, or in any other way, regardless of preservation,
especially if the statute has been held to be facially unconstitutional after the
filing of the appellate brief but before the opinion is handed down. I agree with
the concurring judges in Karenev that
appellate courts should entertain a facial challenge to the penal statute setting out the offense for which the defendant was convicted, even when it is raised for the first time on appeal:
(1) American law prohibits the conviction and punishment of a person under an unconstitutional penal statute; in other words, it is an ―absolute requirement‖ that a person be criminally punished only for the violation of a valid penal law; and
(2) Appellate courts are in at least as good a position as trial courts to review the purely legal question of whether a particular penal statute is facially unconstitutional.10
I would so hold, and because the majority does not, I must respectfully
dissent.
LEE ANN DAUPHINOT JUSTICE
statute and the charging instrument is void‖); Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987), abrogated by Karenev, 281 S.W.3d at 434. 10 Karenev, 281 S.W.3d at 436–38 (Cochran, J., concurring) (citations omitted).