COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00491-CR
TROY BERNARD STOKER JR. APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
This is an appeal from a conviction for aggravated sexual assault of a child
under fourteen years of age, wherein the jury assessed punishment at forty
years’ confinement. In two points of error, Appellant Troy Bernard Stoker Jr.
challenges the trial court’s decision to proceed to trial with eleven jurors and the
trial court’s exclusion of evidence of reputation for truthfulness of a witness. We
will affirm.
1 See Tex. R. App. P. 47.4. FACTS
Though there is no challenge to the sufficiency of the evidence, certain
salient facts need to be shown in order to dispose of issues raised by Appellant.
Appellant was in a relationship with Shawna Owens, K.D.’s mother. Appellant
and Shawna had one child together. Even after the two broke up, Appellant
continued to babysit K.D. and Troy, Jr., and the children regularly stayed with
Appellant. Another girlfriend of Appellant, Michelle Woods, was talking with
Shawna at Appellant’s apartment. After the conversation, Shawna asked K.D. if
Appellant had inappropriately touched her. K.D. responded in the affirmative,
and both Shawna and Michelle reported the touching to the police. The evidence
shows that a few days after the alleged touching incident, K.D. was interviewed
by CPS workers, and she denied being abused by Appellant. No physical
evidence of abuse was found, and no DNA was collected.
Appellant argued that there was a frame-up, that Shawna Owens was
jealous of Michelle Woods, that there was evidence that Shawna stated she
wanted to “stab” Appellant, and that she wanted to ”get him.” The evidence also
suggests that Appellant was dating Michelle and Shawna at the same time, and
that he was living in the apartment of yet another woman, Denise Harris, when
K.D. was allegedly assaulted in that apartment.
POINT NUMBER ONE
Appellant contends that the trial court improperly concluded that juror # 20,
2 John Nguyen, was disabled under the law, and excluded the juror erroneously.
On the third day of trial, Nguyen told the trial court that he could no longer serve
as a juror because 1) he was losing too much income and 2) he had difficulty
understanding the testimony because of his lack of understanding the English
language. The trial court ultimately excused Nguyen from the jury, and the trial
proceeded with eleven (11) jurors.
Appellant contends that Nguyen was not disabled under article 36.29 of
the code of criminal procedure because he indicated that he could listen to the
testimony and would put out of his mind his loss of income. See Tex. Code Crim
Proc Ann. art. 36.29 (West 2010). Although Appellant cites a pair of cases for
our consideration, there is a threshold matter to be examined. The State
contends that if there is indeed error in proceeding to trial with eleven jurors in
this case, that error was invited by Appellant. We agree.
The record reflects that there was a conference in open court between the
trial court, Appellant and his counsel, and the State. The trial court voiced its
concerns about the fitness of Nguyen to continue to serve on the jury. Counsel
for Appellant made it known to the trial court that he and his client did not want
Nguyen to serve on the jury, and they preferred to finish the trial with eleven
jurors. Subsequently, a written document was signed and entered of record in the
trial. In the document, all parties agreed to finish the trial with eleven jurors, and
indeed, the trial court sought and received the personal permission of Appellant
to so proceed. All parties signed this written document, which is a part of the
3 clerk’s record.
In Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 2011), the defendant
was offered an opportunity by the trial court to secure the presence of a
recalcitrant witness by writ of attachment for cross-examination purposes, but the
defendant declined the offer. Then, on appeal the defendant complained that he
had been denied the right to cross examine the absent witness. The court of
criminal appeals held that the law of invited error provides that a party cannot
take advantage of an error that is invited or caused, even if such error is
fundamental. Id. at 644, (quoting Prystash v. State, 3 S.W.3d 522, 531 (Tex.
Crim. App. 1999) (en banc). In other words, a party is estopped from seeking
appellate relief based on error that it induced. Prystash, 3 S.W. 3d at 531. “To
hold otherwise would be to permit [an appellant] to take advantage of his own
wrong.” Id. at 531.
In the instant case, Appellant not only joined the State in agreeing to
discharge the juror, but also specifically informed the trial court that Nguyen was
objectionable to him. Given these facts, Appellant is estopped from asserting a
claim that Nguyen should not have been discharged by the trial court under
article 36.29. A jury can proceed to verdict with eleven jurors if the defendant
consents to same. See Ex Parte Garza, 337 S.W.3d 903, 911—12 (Tex. Crim.
App. 2011) (citing Hatch v. State, 958 S.W.2d 813, 815-16 (Tex. Crim. App.
1997). Appellant’s first point is overruled.
POINT OF NUMBER TWO
4 In two, Appellant contends that the trial court erred by excluding evidence
of Shawna Owens’ reputation for truthfulness under Texas Rule of Evidence 608.
During the trial, Appellant attempted to ask witness Laverdia Harris during direct
examination, “Do you think Shawna Owens is the type of person to bring this
up?” The State objected and the trial court sustained the objection. The
implication by Appellant’s line of questioning is that Shawna Owens fabricated
the allegation of sexual assault and also convinced the victim to falsely accuse
Appellant of sexual assault. Rule 608(a)(1) provides that the credibility of a
witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: 1) the evidence may refer only to
character for truthfulness or untruthfulness. Tex. R. Evid. 608(a)(1). We believe
that even if we assume arguendo that error was committed by the trial court in
excluding legally admissible evidence under Rule 608(a)(1) , any such error was
harmless on the facts of this case.
The rule as stated by our court of criminal appeals is that overruling an
objection to evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling. The
rule applies whether the other evidence was introduced by the defendant or the
State. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also
Coble v. State, 330 S.W.3d 253, 282, n. 82 (Tex. Crim. App. 2010); Valle v.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00491-CR
TROY BERNARD STOKER JR. APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
This is an appeal from a conviction for aggravated sexual assault of a child
under fourteen years of age, wherein the jury assessed punishment at forty
years’ confinement. In two points of error, Appellant Troy Bernard Stoker Jr.
challenges the trial court’s decision to proceed to trial with eleven jurors and the
trial court’s exclusion of evidence of reputation for truthfulness of a witness. We
will affirm.
1 See Tex. R. App. P. 47.4. FACTS
Though there is no challenge to the sufficiency of the evidence, certain
salient facts need to be shown in order to dispose of issues raised by Appellant.
Appellant was in a relationship with Shawna Owens, K.D.’s mother. Appellant
and Shawna had one child together. Even after the two broke up, Appellant
continued to babysit K.D. and Troy, Jr., and the children regularly stayed with
Appellant. Another girlfriend of Appellant, Michelle Woods, was talking with
Shawna at Appellant’s apartment. After the conversation, Shawna asked K.D. if
Appellant had inappropriately touched her. K.D. responded in the affirmative,
and both Shawna and Michelle reported the touching to the police. The evidence
shows that a few days after the alleged touching incident, K.D. was interviewed
by CPS workers, and she denied being abused by Appellant. No physical
evidence of abuse was found, and no DNA was collected.
Appellant argued that there was a frame-up, that Shawna Owens was
jealous of Michelle Woods, that there was evidence that Shawna stated she
wanted to “stab” Appellant, and that she wanted to ”get him.” The evidence also
suggests that Appellant was dating Michelle and Shawna at the same time, and
that he was living in the apartment of yet another woman, Denise Harris, when
K.D. was allegedly assaulted in that apartment.
POINT NUMBER ONE
Appellant contends that the trial court improperly concluded that juror # 20,
2 John Nguyen, was disabled under the law, and excluded the juror erroneously.
On the third day of trial, Nguyen told the trial court that he could no longer serve
as a juror because 1) he was losing too much income and 2) he had difficulty
understanding the testimony because of his lack of understanding the English
language. The trial court ultimately excused Nguyen from the jury, and the trial
proceeded with eleven (11) jurors.
Appellant contends that Nguyen was not disabled under article 36.29 of
the code of criminal procedure because he indicated that he could listen to the
testimony and would put out of his mind his loss of income. See Tex. Code Crim
Proc Ann. art. 36.29 (West 2010). Although Appellant cites a pair of cases for
our consideration, there is a threshold matter to be examined. The State
contends that if there is indeed error in proceeding to trial with eleven jurors in
this case, that error was invited by Appellant. We agree.
The record reflects that there was a conference in open court between the
trial court, Appellant and his counsel, and the State. The trial court voiced its
concerns about the fitness of Nguyen to continue to serve on the jury. Counsel
for Appellant made it known to the trial court that he and his client did not want
Nguyen to serve on the jury, and they preferred to finish the trial with eleven
jurors. Subsequently, a written document was signed and entered of record in the
trial. In the document, all parties agreed to finish the trial with eleven jurors, and
indeed, the trial court sought and received the personal permission of Appellant
to so proceed. All parties signed this written document, which is a part of the
3 clerk’s record.
In Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 2011), the defendant
was offered an opportunity by the trial court to secure the presence of a
recalcitrant witness by writ of attachment for cross-examination purposes, but the
defendant declined the offer. Then, on appeal the defendant complained that he
had been denied the right to cross examine the absent witness. The court of
criminal appeals held that the law of invited error provides that a party cannot
take advantage of an error that is invited or caused, even if such error is
fundamental. Id. at 644, (quoting Prystash v. State, 3 S.W.3d 522, 531 (Tex.
Crim. App. 1999) (en banc). In other words, a party is estopped from seeking
appellate relief based on error that it induced. Prystash, 3 S.W. 3d at 531. “To
hold otherwise would be to permit [an appellant] to take advantage of his own
wrong.” Id. at 531.
In the instant case, Appellant not only joined the State in agreeing to
discharge the juror, but also specifically informed the trial court that Nguyen was
objectionable to him. Given these facts, Appellant is estopped from asserting a
claim that Nguyen should not have been discharged by the trial court under
article 36.29. A jury can proceed to verdict with eleven jurors if the defendant
consents to same. See Ex Parte Garza, 337 S.W.3d 903, 911—12 (Tex. Crim.
App. 2011) (citing Hatch v. State, 958 S.W.2d 813, 815-16 (Tex. Crim. App.
1997). Appellant’s first point is overruled.
POINT OF NUMBER TWO
4 In two, Appellant contends that the trial court erred by excluding evidence
of Shawna Owens’ reputation for truthfulness under Texas Rule of Evidence 608.
During the trial, Appellant attempted to ask witness Laverdia Harris during direct
examination, “Do you think Shawna Owens is the type of person to bring this
up?” The State objected and the trial court sustained the objection. The
implication by Appellant’s line of questioning is that Shawna Owens fabricated
the allegation of sexual assault and also convinced the victim to falsely accuse
Appellant of sexual assault. Rule 608(a)(1) provides that the credibility of a
witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: 1) the evidence may refer only to
character for truthfulness or untruthfulness. Tex. R. Evid. 608(a)(1). We believe
that even if we assume arguendo that error was committed by the trial court in
excluding legally admissible evidence under Rule 608(a)(1) , any such error was
harmless on the facts of this case.
The rule as stated by our court of criminal appeals is that overruling an
objection to evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling. The
rule applies whether the other evidence was introduced by the defendant or the
State. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also
Coble v. State, 330 S.W.3d 253, 282, n. 82 (Tex. Crim. App. 2010); Valle v.
State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).
APPLICATION OF LAW TO FACTS
5 In applying the rule from Leday, we must examine the whole record to
determine if this evidence was admitted elsewhere without objection during the
trial. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In cross-
examination, Laverdia Harris was asked by the State about a conversation Harris
had with Shawna Owens. The conversation concerned child support owed by
Appellant to Owens, viz:
[PROSECUTOR]…The conversation with Shawna Owens late August, early September, what was the circumstances of that conversation?
[LAVERDIA HARRIS] Child support, and she said she’s gonna get him.
Q. Did she say she’s gonna to get money or get him?
A. No. Get him.
….
Q And then on August 26, 2010, I asked you again, I said, “Why would [K.D., victim] be saying these things,” and this time you told me because you think her mom (Owens) put her up to this. Do you remember that?
A. Yeah.
Q. Okay.
A. I still feel that way.
Q. Okay, now, when I asked you in February of 2010, you said you didn’t know why these things were coming out, correct?
A. Correct.
Q. And when I asked you in August of this year and then today, just so we’re clear, are you telling me that now you think it’s because Shawna put her up to this?
A. Yes.
6 And in a similar vein, when questioned by Appellant, Michelle Woods opined
thusly:
[DEFENSE COUNSEL] Now, we’ve also talked before, is that correct?
[MICHELLE WOODS] That’s correct.
Q. And when I asked you—I asked you one time before, do you think Shawna was the kind of person that set this up?
A. Uh-huh.
Q. What do you think?
A. I’d say, “Yeah she could.”
Q. And you also said you think Shawna is the kind of person that would set this up.
A. Yes, I did say that.
Q. Why do you think that?
A. Just by what Troy told me of how their relationship was, the kind of person—she’s vindictive, basically.
Two things are evident from the testimony of Laverdia Harris and Michelle
Woods. First, the Appellant’s theory of the case was that Shawna Owens
engaged in a frame-up of Appellant, by soliciting untruths from K.D. concerning
alleged sexual assaults by Appellant. Secondly, Woods was of the opinion that
Owens had a motive to fabricate, i.e., Appellant’s relationship with her (Woods).
It seems clear from this testimony that Appellant was fully able to accomplish his
goal through the testimony set out above. Even assuming the trial court was in
7 error in excluding the relevant testimony of Harris, the error, if any, was harmless
in that it did not affect the substantial rights of Appellant. Tex. R. App. P. 44.2(b).
Appellant’s second point is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
PANEL: CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting by Assignment); WALKER; and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: September 22, 2011