Splawn v. State

160 S.W.3d 103, 2005 WL 221286

• Court: Court of Appeals of Texas
• Decided: March 29, 2005
• Docket: 06-03-00243-CR
• Status: Published

Opinion

OPINION

Opinion by

Chief Justice MORRISS.

Life imprisonment, on each of the two charges 1 of aggravated sexual assault of a child and indecency with a child, resulted from Chad Anthony Splawn’s single jury trial. 2 None of Splawn’s ten points of error attacks the sufficiency of the evidence, so we discuss the evidence only as necessary to address the points Splawn raises.

We affirm Splawn’s conviction on both charges, affirm the mandatory life sentence on the aggravated sexual assault of a child conviction, and reverse his life sentence on the indecency with a child conviction, remanding the indecency sentence to the trial court for a new hearing on punishment. We reach that result because we hold that (A) the jury charge on range of punishment contained egregiously harmful error and thus requires a new punishment hearing; but (B) denying Splawn’s motion for continuance was discretionary, (C) the State’s notice regarding extraneous offenses was timely and adequate, (D) the location of the trial was proper, (E) the State’s notice of enhancements was sufficient, (F) the State was not required to disclose Splawn’s oral statements, (G) denying Splawn’s challenges of venirepersons for cause was not error, and (H) denying Splawn’s Batson challenges was not error.

A. Jury Charge on Range of Punishment Contained Egregiously Harmful Error

In his first two points of error, Splawn contends (1) that the jury charge contained a harmfully erroneous range of punishment for the indecency with a child conviction and (2) that denying his motion for new trial asserting that error was, itself, error. Although the State argued at trial that Splawn’s punishment on the indecency conviction was properly enhanced under Tex. Pen.Code Ann. § 12.42(b) (Vernon Supp.2004-2005), the State now concedes this was incorrect because the previous offense was not a final conviction, but had instead been subject to community supervision. 3 The jury was thus erroneously charged that the range of punishment for the indecency conviction was five to ninety-nine years or life.

The trial objection made to this portion of the charge is focused on a claim of a lack of notice of the State’s proposed enhancements and does not address the range of punishment error. Because Splawn did not object to the range-of-punishment error, the error is reversible only if it caused him egregious harm. See Cartwright v. State, 838 S.W.2d 134, 137 (Tex.Crim.App.1992) (applying Almanza analysis to error in charging range of punishment); see also Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). In determining whether egregious harm occurred, we review the error in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and all other relevant evidence revealed by the record as a whole. Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App.1997) (quoting Alman-za, 686 S.W.2d at 171).

Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 171); Washington v. State, 59 S.W.3d 260, 265 (Tex.App.-Texarkana 2001, pet. ref’d).

In this case, the harm is obvious: Splawn was sentenced to life in prison for a charge on which he could properly have been sentenced to a maximum of only twenty years.

The State has suggested that we have the authority to reform the sentence from the maximum under the erroneous range to the maximum under the correct, lesser range, arguing this would obviously satisfy the intention of the jury. The general rule is that, if we have “the necessary data and evidence before [the court] for reformation, the judgment and sentence may be reformed on appeal.” Banks v. State, 708 S.W.2d 460 (Tex.Crim.App.1986). The State directs us to an unpublished case in which the court, without comment or analysis, reformed a maximum sentence under an incorrect range to the maximum sentence under the lesser range. See Crain v. State, No. 14-97-00234-CR, 1998 WL 418846, 1998 Tex.App. LEXIS 4478 (Tex.App.-Houston [14th Dist.] July 23,1998, no pet.) (not designated for publication). Crain relied on McCray v. State, 876 S.W.2d 214, 217 (Tex.App.-Beaumont 1994, no pet.), as authority. In McCray, the court, in a split opinion, concluded with little analysis that, because the trial court had sentenced McCray to the highest level available under the wrong range of punishment, it could reform that sentence to the highest level under the lower range.

Other courts have declined to apply that theory, and have reversed cases where a fact-finder was provided with the wrong range of punishment and remanded the case to the trial court for a new punishment hearing. See Bailey v. State, 7 S.W.3d 721, 725 (Tex.App.-Corpus Christi 1999), vacated on other grounds, 38 S.W.3d 157 (Tex.Crim.App.2001); State v. Rowan, 927 S.W.2d 116 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

We conclude sentence reformation is not appropriate here. In each of the cases allowing reformation, only a single charge had been prosecuted. While we find reformation attractive when there is a single charge — if a fact-finder found the maximum punishment to be the right one under a high level felony, it would certainly find the maximum punishment proper under a lesser charge — it is problematic here.

This case is more complex because two different charges were involved, and the error may well have influenced the jury’s assessment of punishment on the indecency charge. The erroneous range of punishment charged on the indecency conviction was communicated to the jury at the same time as the accurate charge concerning the mandatory life sentence for the enhanced assault conviction. The jury was charged that the indecency conviction was punishable with as much as a life sentence, the mandatory sentence on the other enhanced conviction. If the two offenses were worthy of equal maximum punishment, the jury could very easily have concluded they should, in fact, be equally punished. Because, in fact, the range of punishment for indecency with a child is substantially different from the life sentence mandated for aggravated sexual assault of a child, enhanced — and because we cannot know how the jury might have assessed punishment on the indecency conviction, if correctly charged on that offense — we remand the indecency sentence to the trial court for another punishment hearing. See Flores v. State, 888 S.W.2d 187, 193 (Tex.App.-Houston [1st Dist.] 1994, pet. refd).

B. Denying the Continuance Was Discretionary

In his third point of error, Splawn contends the court committed reversible error by failing to grant his first pretrial motion for continuance. The record shows that Splawn originally had appointed counsel, who was evidently replaced with retained counsel November 19, 2002. After at least one more delay from a March 24, 2003, trial setting, the retained counsel was allowed to withdraw July 3, 2003, and yet another attorney was appointed that same day. That attorney withdrew only six days later, and current counsel, Jeff Starnes, was appointed to represent Splawn. Starnes filed the motion for continuance August 14, 2003, and after a hearing August 19, the trial court denied the motion. Voir dire began September 8, and trial began the next day.

The trial court’s ruling on a motion for continuance is reviewed for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App.1995); see Tex. Code Ckim. PROC. Ann. arts. 29.03, 29.06(6) (Vernon 1989). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996); Heiselbetz, 906 S.W.2d at 511.

As pointed out by the State, Starnes had represented Splawn for five weeks before filing the motion for continuance. At a hearing August 19, Starnes informed the trial court that he felt unprepared because he had not received previous counsel’s file until August 12. He also pointed out that he was, at the same time, appointed counsel for another defendant whose trial was to begin shortly in that same court, and that the defendant in the other case could not speak English, requiring a translator for all communications. Counsel also pointed out that his pretrial motions had not yet been ruled on, and that because of the situation he was not in a position to prepare adequately for trial.

The trial court considered that, as well as the facts that Splawn had already been in jail for 332 days and that his trial had been already delayed at least once. The court then noted that the previous delay had occurred because of the withdrawal of retained counsel on the eve of trial. After articulating concerns about the delays and their causes, the court decreed that the Splawn case would be tried first and that the other criminal matter would be delayed.

The situation was further complicated when the State, at the last minute, provided Splawn with a videotape as required by an extant discovery order. As a result, the trial court delayed trial yet another ten days. Thus, trial actually began September 9. Considering the length of time that had elapsed, the previous delay, and the last, ten-day delay of the trial, we cannot conclude the trial court abused its discretion by concluding that no additional delays should be permitted and that trial should commence as ordered. We find no error in the denial of the motion for continuance.

C. Notice Regarding Extraneous Offenses Was Timely and Adequate

In points of error four and five, Splawn contends the trial court erred in ruling the State had given timely and adequate notice of its intention to introduce evidence of extraneous offenses. On July 21, Splawn filed requests directed both to the trial court and to the State referencing Article 37.07 of the Texas Code of Criminal Procedure and Rule 404 of the Texas Rules of Evidence, respectively, asking for immediate notice. On July 24, Splawn filed a similar request under Article 38.37 of the Texas Code of Criminal Procedure. Each of the three requests served both as a request to the State and as a motion to the trial court asking for enforcement should the State be derelict in complying with the request. The three motions were formally granted by the trial court August 25, 2003.

The State provided notice August 21, 2003, listing five extraneous alleged offenses it intended to prove. All five were originally in the indictment and had been abandoned by the State. The August 21 list contains dates differing from those in the indictment. That list alleged that four of the five offenses occurred June 6, 2002, in contrast to the indictment’s May 6, 2003, date. Thus, on August 26, the State filed an amended list setting out the correct date.

Voir dire in this case began September 8, 2003. Trial began the next day, September 9. We have recently acknowledged the presumption that notice of intent to enhance, given more than ten days before trial, is timely. McNatt v. State, 152 S.W.3d 645 (Tex.App.-Texarkana, 2004, pet. filed) (not designated for publication); Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.). In this case, even if we calculate from the later date, over ten days elapsed from the date of notice to the beginning of the trial. Notice was timely.

But Splawn also asserts that the State’s notice regarding extraneous offenses was inadequate, in that the State provided insufficient details of the extraneous offenses to allow him to adequately prepare for trial. The two latest amended notices, filed August 26, 2003, each disclosed five alleged offenses which had not resulted in a conviction. 4 Each of the alleged offenses was disclosed by including information on the name or classification of the alleged offense, the date of its alleged commission, the county in which it was allegedly committed, its alleged victim, and finally a reference that it was “separate (abandoned) count” followed by an associated number. Splawn portrays that last reference as vague, but we disagree. The references clearly refer to numbered counts of the indictment, which counts had been subsequently abandoned but which the State wished to use as evidence at trial. 5

Splawn specifically complains about the notices’ confusion of dates and their lack of specificity regarding how each alleged offense was committed. We address first the date component, then the disclosure concerning how each alleged offense was committed.

"While there was admittedly some initial confusion in the trial court about the various alleged offenses and their dates, that does not negate the fact that the latest amended notices of August 26, 2008, which we have already concluded were timely, clearly set out a date for each alleged offense. Therefore, the notices’ dates of offense were sufficiently stated.

The substance of the alleged offenses were adequately noticed, as well. In addition to the other related information about each offense — omitted here — the notice specified the five alleged offenses by name or classification of offense and by reference to specific counts of the indictment:

OFFENSE [A]: Indecency With A Child (by exposure)

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STATUS OF CHARGE: charged as separate (abandoned) count six

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OFFENSE [B]: Aggravated Sexual Assault of a Childsexual contact (“cause the anus of [J.H.] to contact the sexual organ of the defendant”)

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STATUS OF CHARGE: charged as separate (abandoned) count two

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OFFENSE [C]: Indecency With A Child (by exposure)

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STATUS OF CHARGE: charged as separate (abandoned) count seven

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OFFENSE [D]: Indecency With A Child (by contact)

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STATUS OF CHARGE: charged as separate (abandoned) count five

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OFFENSE [E]: Indecency With A Child (by contact)

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STATUS OF CHARGE: charged as separate (abandoned) count three

As to each noticed alleged offense, the named offense completely matched with the details set out by the referenced count of the indictment:

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That is ample detail to give Splawn notice of the alleged offenses.

In asserting the inadequacy of notice, Splawn invokes three different notice requirements, Article 37.07, Section 3(g), and Article 38.37, Section 3, of the Texas Code of Criminal Procedure, and Rule 404(b) of the Texas Rules of Evidence. We address each in turn.

Article 37.07, Section 3(g) — applicable to evidence introduced during the punishment phase of trial — provides that notice of alleged offenses that have “not resulted in a final conviction in a court of record or a probated or suspended sentence” must include the date and county of the occurrence and the name of the alleged victim. Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(g) (Vernon Supp.2004-2005). If referencing the indictment is proper, each of the noticed alleged offenses provides the information required by Article 37.07, Section 3(g). 6

Article 38.37, Section 3, of the Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules of Evidence apply regarding evidence introduced during the guilt/innocence phase of trial. Article 38.37, Section 3, provides that its required notice is to be given in the same manner as notice under Texas Rule of Evidence 404(b). Tex.Code Ceim. PROC. Ann. art. 38.37, § 3 (Vernon Supp.2004-2005); Tex.R. Evid. 404(b). Neither Article 38.37, Section 3, nor Rule 404(b), specify what information must be included for a notice to be reasonable. But the purpose of at least Rule 404(b) is to avoid surprise. Cole v. State, 987 S.W.2d 893, 897 (Tex.App.-Fort Worth 1998, pet. ref d); Self v. State, 860 S.W.2d 261, 264 (Tex.App.-Fort Worth 1993, pet. ref’d); see Hayden v. State, 66 S.W.3d 269, 271 (Tex.Crim.App.2001). That is essentially the purpose of Article 37.07, Section 3(g). Roman v. State, 986 S.W.2d 64, 67 (Tex.App.-Austin 1999, pet. refd); Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. refd). We see no reason why the type of information, or the level of detail in that information, required under any of the three provisions to make a notice sufficient, should be appreciably different, except for the obvious difference between, on one hand, a cause number and county and date of conviction, where there has been a conviction, and, where an offense has not resulted in a conviction, “the date and county of the occurrence and the name of the alleged victim,” as required by Article 37.07, Section 3(g). See Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(g).

A notice’s reference to other written material available to defense counsel is adequate notice, if it is reasonably calculated to draw defense counsel’s attention to an extraneous offense described in the referenced material. See Roman, 986 S.W.2d at 67. The State’s notice in this case, referring Splawn’s counsel to specified numbered counts in the indictment to provide the additional detail therein disclosed, is sufficient notice, since the descriptions of the offenses as set out in the referenced counts of the indictment contain sufficient information—notifying Splawn of the allegations that he exposed his genitals in J.H.’s presence, that he caused his penis to contact J.H.’s anus, and that he touched J.H.’s genitals. The notice as to each extraneous offense gave information, either in the notice itself or by reference to a specific numbered count of the indictment, sufficient to allow Splawn to prepare for trial. Notice was therefore not only timely, but adequate.

D. Location of Trial Was Proper

Splawn’s sixth point of error contends the trial court erred by holding the trial in the Police Athletic League (PAL) building. The facility is a designated auxiliary court facility. See Tex. Loc. Gov’t Code Ann. § 292.004 (Vernon 1999). Splawn argues he was harmed because it is a location where children and police intersect, because the PAL emblem on the outside of the building reflects its purpose, and because groups of children typically were found in the hallways leading to the courtroom and jury room. He provides no legal argument under this contention of error. We are not convinced that error is shown by holding the trial in a sanctioned facility. Further, even if some error could be said to exist, the existence of a symbol involving children does not of itself show harm under these facts, and the existence of children in hallways is reflective of life in general. Under these facts, no harm appears. We overrule this contention of error.

E. Notice of Enhancements Was Sufficient

Splawn’s seventh point of error asserts error in the enhancement charge’s inclusion of an enhancement not incorporated into the indictment. He contends that pleading enhancement allegations in the indictment is not only the “traditional” method of achieving that purpose, but also that it is implicitly required by the Texas Constitution. As pointed out by the State, this contention was disposed of by the Texas Court of Criminal Appeals in Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997), which held that, despite prior cases holding to the contrary, enhancements need not be pled in the indictment, though noting that it is perhaps preferable to do so. This contention is without merit.

F. Disclosing Splawn’s Oral Statements Was Not Required

In his eighth point of error, Splawn contends that the court erred by allowing the State to introduce statements allegedly made by Splawn that were not turned over to defense counsel before trial. The pretrial order entered by the court requires the State to make a list of materials available “for inspection, photographing, photocopying and duplication,” including all “confessions, statements and res gestae statements purportedly made by the Defendant....” The order requires to be turned over to the defense, no later than 10:00 a.m. on the 28th day after entry of the order and on written demand, as much of such information and materials as are under the control of the State.

Splawn complains because the State, on the Friday before jury selection began, gave oral notice of the existence of an oral admission by Splawn to the parents of J.H. Splawn argues that this is a clear failure to comply with the order. We disagree. The order is not directed generally at all potential testimony of witnesses, and does not require the State to create and then provide documentation of their prospective oral testimony. Oral comments, not in written form in the State’s possession, uttered by Splawn to third parties, are not matters within the possession, custody, or control of the State. The State cannot be faulted for failing to produce them. We overrule this contention of error.

G. Denying Challenges of Venirepersons for Cause Was Not Error

Splawn’s ninth point of error attacks the trial court’s denial of Splawn’s challenges for cause against venirepersons numbered six, twelve, forty-four, and forty-six, which he states forced him to accept jurors that would otherwise have been unacceptable.

When reviewing a trial court’s decision to grant or deny a challenge for cause, we are to look at the entire record to determine if there is sufficient evidence to support the court’s ruling. Sells v. State, 121 S.W.3d 748, 759 (Tex.Crim.App.2003). We give great deference to the trial court’s decision because the trial judge is present to observe the demeanor of the venireperson and to listen to the tone of voice. Id. We have been directed to give particular deference when the potential juror’s answers are vacillating, unclear, or contradictory. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002); King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App.2000). In our review, we look to see if the trial court abused its discretion in denying a defendant’s challenges for cause. Murphy v. State, 112 S.W.3d 592, 600 (Tex.Crim.App.2003).

We address each challenged venireper-son in turn.

Juror six, Mr. Glenn, had written in a juror questionnaire that, if a person was not guilty, he would take the stand to tell his side of the story, and stated that a person charged with molesting a child should have to prove his innocence “without a doubt.” In a more extended discussion, he went on to explain that he could balance the evidence and would require the defense to put on evidence. However, when the State questioned him, he gave answers agreeing that a defendant did not have to put on evidence, because the State had to prove guilt. On requestioning by defense counsel, he again flip-flopped, agreeing that, regardless of what the law says, he believed an accused child molester should have to prove his or her innocence. He then stated, however, that he could put that “in the back of his head, gone.” This is a situation where a venireperson vacillated, depending on which counsel was questioning him. See Feldman, 71 S.W.3d at 744. In such a situation, we must defer to the trial court’s determination.

Juror twelve, Mr. Jones, a retired Texas Department of Public Safety officer who worked with the officer in the sheriffs office who had investigated this case, said that he would perhaps tend to give an officer’s testimony the benefit of the doubt as opposed to someone he did not know and that he knew the woman who had interviewed the child. He also stated that he would try his best to set those factors aside and decide the case based on the evidence, and that he would follow the law as stated by the judge. His statements are not of the type that remove this decision from the trial court’s discretion.

Juror forty-four, Mr. White, stated that a child would not make a statement about molestation unless it happened, and that he believed the majority of the time a child would “tell it just like it is....” As with juror six, his answers about whether the defendant should testify in his own defense vacillated. Yet he did state at one point that it would not influence him. We likewise hold that the decision in this case was within the range of discretion available to the court.

Juror forty-six, Mrs. Walters, stated on her questionnaire her belief that, if a child made such an accusation, it was probably true, that a person accused of a bad crime should let his or- her point of view be heard, and that it would help if the defendant would testify. However, she also stated in response to questions by the State that, if the State failed to prove its case, she would have to find the defendant not guilty. And she finally settled on the statement that, if the defendant did not testify, she would not hold it against him or her, and would decide the case solely based on the evidence she heard. The court had the authority to sort out the contradictory and unclear answers of the vernireperson in the exercise of its discretionary authority.

We overrule this contention of error.

H. Denying Splawn’s Batson Challenges Was Not Error

Splawn’s tenth and final point of error contends the trial court erred in overruling his Batson challenges. His contention is based on a claim that the State had exercised its peremptory challenges on the basis of gender. In each of the seven strikes exercised by the State, it struck a male. Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a litigant may not exercise a peremptory challenge based on the juror’s gender, J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), ethnicity, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), or race, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002).

In our review, wé examine the genuineness instead of the reasonableness of the State’s asserted nonracial motive for peremptorily striking each veniremember. Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). We are then to apply a “clearly erroneous” standard of appellate review to a trial court’s ruling on a Batson claim. This highly deferential standard is applied because the trial court is in the best position to determine whether a prosecutor’s facially race- or gender-neutral explanation for a peremptory strike is genuine. See Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App.2001) (race).

When the Batson challenge was raised, the State worked its way down the fist and attempted to provide a reason for each strike. Splawn complains on appeal about two of them, Steven Edward Philip and Tommy Clyde Lane. The State’s reasons for striking those two veniremembers, while not terribly thorough, are gender neutral:

Steven Edward Philip, I really can’t recall my reasons on that one. I struck him from the previous case last week and basically from that same feeling, although I don’t have my records on that from last week. Tommy Clyde Lane was based on his answers. Let me look at it real quick. He indicated he had a bad check and I had a question on whether or not that resulted in a conviction, and I forgot to ask him that when he was up here. If I’m not mistaken, I think he also indicated that he knew one of the witnesses and I wasn’t sure how he knew him and it seemed like it might be negative.

There is no requirement that the reasons for exercising a peremptory challenge be good ones. In fact, a peremptory challenge is, by definition, one exercised without giving a good reason. The United States Constitution requires only that there be something articulated to show that the exercise was not based on a constitutionally forbidden categorization, such as race, ethnic background, or gender. That standard has been met. The State gave reasons, and they were not reasons that are constitutionally prohibited. That is all that is required. There is no showing that the trial court’s ruling was clearly erroneous. We overrule this contention of error.

We affirm both of Splawn’s convictions, affirm the mandatory life sentence on the assault conviction, and reverse and remand his sentence on the indecency conviction to the trial court for a new punishment hearing.

1 . The sentences were set to run concurrently.

2 . The aggravated sexual assault conviction was for engaging in oral sex with an eleven-year-old boy, while the indecency conviction was for touching the boy's genitals.

3 . Tex. Pen.Code Ann. § 12.42(c)(2) (Vernon Supp.2004-2005) permits enhancement of a sentence for aggravated sexual assault under Section 22.021 even if the prior prosecution resulted in a probated sentence rather than a final conviction. See Tex Pen.Code Ann. § 12.42(g)(1) (Vernon Supp.2004-2005).

4 . One of the two notices also gave notice of two prior felonies, by classification or name of the offense, the date of offense, the county of offense, and the case number. That those details are insufficient is not argued by Splawn.

5 . The State had originally obtained an indictment on two aggravated sexual assault counts — numbered one and two in the original indictment — and five indecency counts— numbered three through seven. Before trial and before the notices in question, the State had dropped counts two, three, five, six, and seven, and retained counts one and four for prosecution.

6 . We note that Splawn has made a similar argument about Article 37.07, Section 3(g), notice before, with equal success. See Splawn v. State, 949 S.W.2d 867, 871 (Tex.App.-Dallas 1997, no pet.).