Tran v. State

221 S.W.3d 79
CourtCourt of Appeals of Texas
DecidedOctober 5, 2005
Docket14-03-01372-CR to 14-03-01374-CR
StatusPublished
Cited by48 cases

This text of 221 S.W.3d 79 (Tran 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
Tran v. State, 221 S.W.3d 79 (Tex. Ct. App. 2005).

Opinion

OPINION

SEYMORE, Justice.

Appellant, Thuong Trang, was convicted of three separate counts of aggravated sexual assault of a child. A jury sentenced appellant to eight years’ imprisonment for each count, and the trial court granted the State’s motion to cumulate the sentences. In six issues, appellant contends that (1) the trial court erred by denying his challenge for cause of a prospective juror, (2) the trial court erred by permitting the state to ask improper commitment questions during voir dire, (3) the evidence is legally and factually insufficient to support his convictions, and (4) the trial court erred by cumulating his sentences. We affirm.

I. BACKGROUND

In May 2001, O.T. told several children at her school that appellant. O.T.’s grandfather, had sexually assaulted her. One of the children informed a teacher, who then notified the school counselor, Marsha Krieger. Krieger spoke to O.T. in private, and O.T. confided that appellant had sexually assaulted her on three separate occasions. At trial, Krieger testified regarding O.T.’s description of these three incidents. On the first occasion, appellant was babysitting O.T. and her siblings when appellant took O.T. into the bedroom and inserted his penis into O.T.’s vagina and rectum. On the second occasion, appellant was babysitting O.T. at O.T.’s apartment when appellant took O.T. into the bedroom and once again “raped” and “sodomized” her. Finally, on the third occasion, O.T. was in the bathroom at appellant’s home when appellant entered the bathroom and forced O.T. to perform oral sex on him. When O.T. gagged, appellant proceeded to rape and sodomize her in the bathroom.

O.T. also testified at trial that appellant sexually assaulted her on three separate occasions. O.T. testified that the first sexual assault occurred at appellant’s home. O.T. and her siblings were watching televi *83 sion when appellant took O.T. into the bedroom and closed the door, leaving her siblings in another room. Appellant placed O.T. on the bed, pulled her pants down, and placed her legs over his shoulders. O.T. testified that appellant put his penis into her “butterfly part,” which was O.T.’s word for her genitals.

According to O.T., the second sexual assault occurred in appellant’s bathroom. O.T. was sitting in the bathroom when appellant entered the bathroom, pulled down O.T.’s pants, and placed her legs over his shoulders. Appellant took spit from his mouth and put it on O.T.’s “butterfly part” before putting his penis inside. Appellant then stopped, turned O.T. around, and placed his penis into her “bottom.”

According to O.T., the third sexual assault occurred at O.T.’s house. O.T. could not remember with certainty where in the house the incident occurred, but stated that it was probably in her bedroom on her bunk bed. O.T. testified that appellant tried to make O.T. kiss him, but O.T. backed away. Appellant licked O.T.’s “butterfly part” and then put his penis inside O.T.’s mouth while pushing her head up and down.

After O.T. made her outcry concerning the alleged sexual assaults, she was taken to the Children’s Assessment Center for a sexual assault examination. A pediatrics nurse practitioner, Deborah Parks, interviewed O.T. and performed the sexual assault examination. In her report, Nurse Parks indicated that, during the examination, she discovered a separation in O.T.’s hymen.

At trial, Dr. Rebecca Girardet testified on behalf of the State. Although Dr. Gir-ardet did not perform O.T.’s examination, she reviewed Nurse Parks’ records and a videotape of the examination. Dr. Girar-det testified that O.T.’s hymenal tissue was minimal, which could indicate recurrent vaginal trauma. However, Dr. Girardet testified that most experts are reluctant to conclusively determine that minimal hyme-nal tissue is the result of vaginal trauma. She testified that minimal hymenal tissue could be normal for O.T.’s age. Dr. Girar-det further testified that after reviewing the videotape of the examination, she was unable to confirm whether there was a separation in O.T.’s hymen.

II. DENIAL OF CHALLENGE FOR CAUSE

In his first issue, appellant contends the trial court erred by denying his challenge for cause of venireperson Goranson. Appellant contends venireperson Goranson is challengeable for cause because of her “repeated statements that she could not be fair” to appellant.

A venire member is challengea-ble for cause if she has a bias or prejudice in favor of or against the defendant. See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9) (Vernon 1989). In the context of jury service, prejudice simply means a “prejudgment.” Anderson v. State, 633 S.W.2d 851, 853 (Tex.Crim.App.1982). Bias is an inclination toward one side of an issue rather than to the other which leads to the natural inference that a juror will not, or did not act, with impartiality. Id. Under article 35.16(a)(9), it is not necessary to show a particular bias or prejudice in favor of or against the defendant. Sosa v. State, 769 S.W.2d 909, 918 (Tex.Crim.App.1989). It is sufficient that the prospective juror states that she cannot be a fair and impartial juror. Id.

Bias is established as a matter of law when a prospective juror admits that he is biased for or against the defendant. Anderson, 633 S.W.2d at 854. When a prospective juror is shown to be biased as *84 a matter of law, she must be excused when challenged, even if she states that she can set aside her bias and provide a fair trial. Id. However, it is left to the discretion of the trial court to initially determine whether such a bias exists and the court’s decision will be reviewed in light of all of the answers given. Id. Unlike the trial court, we cannot observe nor listen to the venire-person and deference is therefore given to the trial court’s decision. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002).

Toward the end of voir dire examination, appellant’s counsel asked the veni-re members if there was “[ajnything you can think of that you want to tell me before I sit down?” Venireperson Wood responded:

I think I would have to say the things that I have heard or maybe the things that we have not heard kind of lead me to believe that our only thing that we’re going to hear is the victim and this is what we’re going to have to go on. I’m thinking if they decided to press charges it must be a pretty convincing witness. And I’m thinking, hum, to put a young person through that kind of trauma of going through the trial, I don’t know, I’m, I’m not sure I could be impartial.

Counsel then asked if any other venire members agreed with Ms. Wood, and the following exchange occurred:

Venireman Chickowski: No. 8. I think I might be a little impartial [sic]. The age group is in my age range .... You know, depending about how the facts would come out, I just want you to know I’m concerned about that, that’s all.

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Bluebook (online)
221 S.W.3d 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tran-v-state-texapp-2005.