Vincent Bernard Dickey v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2006
• Docket: 06-05-00092-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00092-CR

VINCENT BERNARD DICKEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 22,654

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

            While part of an inmate work crew in Greenville working under the supervision of jailer Dixon Latham, Vincent Bernard Dickey stripped off his "jail stripes" and ran away from the work crew in his T-shirt and boxer shorts. Dickey found some clothes at his mother's house and managed to elude authorities until the following day, when he was found hiding in a closet in the vacant side of a local duplex. As a result of the incident, Dickey has now been convicted of escape. See Tex. Pen. Code Ann. § 38.06(a), (c).

            On appeal, Dickey (1) argues the evidence was legally and factually insufficient to prove various elements of the offense as set out by the Texas Penal Code, (2) asserts there was a material variance between the indictment and the proof, and (3) claims the jury charge failed to include an essential element of the offense. We disagree and affirm the judgment of the trial court.

            Of Dickey's three points of error, the first and second, briefed together, present seven, different, substantive issues. Six of those issues challenge the evidentiary sufficiency of different elements of the offense, while the seventh issue concerns an alleged material variance between the indictment and the proof at trial. In recent years, this Court has repeatedly warned litigants not to combine multiple issues into a single point of error, thereby risking our overruling the composite point of error as multifarious. See, e.g., Newby v. State, 169 S.W.3d 413, 414 (Tex. App.—Texarkana 2005, no pet.); Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.—Texarkana 2004, pet. ref'd); Parra v. State, 935 S.W.2d 862, 875 (Tex. App.—Texarkana 1996, pet. ref'd). In the interest of justice, however, we decline the opportunity to overrule Dickey's first two points of error on the basis of them being multifarious.

(1)       The Evidence Is Sufficient to Support the Conviction

            There are three elements in the offense of escape: "(1) escape (2) from custody (3) after having been arrested for, charged with or convicted of an offense." Scott v. State, 672 S.W.2d 465, 466 (Tex. Crim. App. 1984); see also Tex. Pen. Code Ann. § 38.06 (Vernon 2003). The Texas Penal Code defines "escape," as that term is used in Chapter 38, as an "unauthorized departure from custody or [a] failure to return to custody following [a] temporary leave for a specific purpose or limited period . . . ." Tex. Pen. Code Ann. § 38.01(2) (Vernon 2003). The term "custody" is defined as being "under restraint by a public servant pursuant to an order of a court . . . ." Tex. Pen. Code Ann. § 38.01(1)(A) (Vernon 2003).

            In reviewing the legal sufficiency of the evidence, we examine the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing for factual sufficiency, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or whether evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).

            In the case now on appeal, the State's indictment, which was substantially tracked by the jury charge, alleged four alternative theories of how Dickey escaped from custody:

Theory 1:  Dickey escaped from the custody of Latham after being convicted of felony theft in cause number 15,696.

Theory 2:  Dickey escaped from the custody of Latham after being convicted of the felony of delivery of a controlled substance in cause number 15,818.

Theory 3:  Dickey escaped from the custody of Latham after being convicted of the felony of burglary of a habitation in cause number 15,828.

Theory 4:  Dickey escaped from the custody of Latham after being convicted of an offense (an unnamed misdemeanor or felony) for which Dickey was confined to a secure correctional facility.

If the State's evidence is legally and factually sufficient under any of these alternative theories, we must overrule Dickey's sufficiency challenge. See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005) (where jury charge authorizes conviction on alternative theories, verdict of guilt will be upheld if evidence was sufficient on any of theories).

            A. The Evidence Was Sufficient to Show Dickey Was in Custody

            In his first and second issues, Dickey contends the evidence is legally and factually insufficient to prove he was in custody at the time he escaped. The evidence at trial showed Latham, a jailer for the Hunt County Sheriff's Department, had taken Dickey and several other inmates from the jail as part of a work crew April 17, 2004. As he had many times before, Latham took this particular group to the Greenville Police Department's satellite office. Latham testified:

The men pretty well knew their jobs. Some were weed eaters. Some were mowers. We had two mowers that needed repair. Blades replaced on it. The big mower that Vincent Dickey drove was on the trailer and this was too small a lot to roll it off for it. So he got off ostensibly to pick up trash in that site.

When time came for the work crew to return to the jail, Dickey had vanished.

            Dickey's parole officer, Tina Shepard, testified Dickey was being held in the Hunt County Jail on a parole revocation warrant on the day he disappeared from the work crew. Shepard also told the jury that the parole revocation warrant related to Dickey's twenty-five-year prison sentences in each of three cases (cause numbers 15,696, 15,818, and 15,828), sentences which Dickey had not yet discharged. The jury also received copies of the judgments of conviction in those cases, as well as a copy of Dickey's post-arrest confession in which he admitted to (a) being locked up on the parole revocation warrant, (b) being taken out of the jail as part of a trustee work crew, (c) running away from the work crew, and (d) removing his "jail stripes" as he ran. Dickey also admitted in that statement that he had "spent most of the night [between the day of his escape and the day of his recapture] on the tracks back down in the woods. I was debating on coming back and turning myself in because I kept thinking about how my mama cried when I was there at [her] house."

            On appeal, Dickey argues that the three judgments of conviction in cause numbers 15,696, 15,818, and 15,828 may not suffice as the underlying "court orders" on which Dickey had been in custody at the time of the escape. Dickey contends there must be an additional order from the trial court specifically authorizing Latham—or, alternatively, naming any duly appointed jailer or sheriff's deputy—to take custody of Dickey. We disagree that our law requires such an order.

            In general, judgments of conviction in Texas—at least those resulting in imprisonment—direct the sheriff of the convicting county to "promptly and safely" deliver the convicted felon to the Institutional Division of the Texas Department of Criminal Justice ("the Department"), where the convicted felon is to be confined for the term specified in the trial court's judgment. Thus, the Department's authority to take "custody" of the felon arises from the trial court's original judgment of conviction. If a felon is released to parole or mandatory supervision, the felon remains subject to the reasonable and lawful conditions of release imposed by the Department. This is because release on parole or mandatory supervision is not a form of clemency. See Tex. Gov't Code Ann. § 508.002 (Vernon 2004). Instead, parole allows the releasee to serve the remainder of his or her sentence outside the walls of a prison under the supervision of the Department's Pardons and Paroles Division. Tex. Gov't Code Ann. § 508.001(6) (Vernon 2004). If the felon violates the terms of those conditions, the Board of Pardons and Paroles ("the Board") may issue a parole revocation warrant. The Board's authority to issue such a warrant is statutory, see Tex. Gov't Code Ann. § 508.251 (Vernon 2004), but the Board's ability to exercise such power is contingent on the Department, and thus the Board, first having been granted custody of the felon by a trial court's underlying judgment of conviction. Thus, the root authority for any parole revocation warrant is the original judgment of conviction itself. It necessarily follows that Dickey's argument on appeal—that an underlying judgment of conviction could not serve as a "court order" by which Latham had lawful custody of Dickey—is meritless. Latham had custody of Dickey pursuant to the parole revocation warrant, which in turn relied on the underlying judgments of conviction. Accordingly, using the standards of review set forth above, we conclude the evidence is legally and factually sufficient to show Dickey was under restraint by Latham, a public servant, pursuant to the trial court's judgments of conviction in cause numbers 15,696, 15,818, and 15,828 at the time of Dickey's escape. It was unnecessary for those judgments to specifically authorize Latham, by name, to take Dickey into custody.

            B. The Evidence Was Sufficent to Show Dickey Was Incarcerated on a Felony

            In his third and fourth issues, Dickey contends the evidence is legally and factually insufficient to show he was incarcerated on any of the three felonies alleged in the indictment at the time he escaped. We disagree.

            Shepard testified she had been supervising Dickey's parole for each of his twenty-five-year sentences in cause numbers 15,696, 15,818, and 15,828 before Dickey was placed in the Hunt County jail. According to Shepard, before his escape Dickey had been in jail pursuant to parole revocation warrants issued in connection with those underlying felony convictions. Shepard also told the jury that Dickey had not finished serving his sentence in any of the three underlying felony convictions specifically alleged in the indictment. As discussed above, copies of those underlying judgments had been admitted into evidence, establishing Dickey's convictions for burglary of a habitation, possession of cocaine, and felony theft, each of which resulted in a twenty-five-year sentence. And, in his own custodial confession, Dickey expressed remorse for leaving the work crew, an expression that inferentially acknowledged Dickey knew his participation in the work crew was limited to staying at the work site and performing the duties assigned by Latham. Accordingly, using the review standards outlined above, we believe the jury could rationally have concluded Dickey was in Latham's custody due to any of three underlying felonies at the time Dickey escaped. Cf. Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995) (offense complete when appellant ran from jail transport van); Harrell v. State, 743 S.W.2d 229, 230–31 (Tex. Crim. App. 1987) (appellant escaped from VA hospital off prison grounds; conviction affirmed); Dutton v. State, 874 S.W.2d 206, 208–09 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (evidence showed appellant had not yet discharged twenty-year sentence at time of escape; conviction affirmed).

            C. We Need Not Address Dickey's Confinement in a Secure Correctional Facility

            In his fifth and sixth issues, Dickey contends the evidence is legally and factually insufficient to show he was confined in a secure correctional facility at the time of his escape. But because the evidence is legally and factually sufficient under any of the State's first three theories of prosecution, we need not, and do not, address whether the evidence is sufficient to sustain Dickey's conviction under the fourth theory of the offense outlined by the indictment. See Sorto, 173 S.W.3d at 472.

(2)       There Is No Material Variance Between the Indictment and the Proof

            In his seventh issue, Dickey contends that a material variance exists between the indictment and the proof offered at trial. Dickey asserts that—because the underlying felony judgments in cause numbers 15,696, 15,818, and 15,828 did not specifically designate and authorize Latham, or any Hunt County jailer, to take custody or supervision of Dickey, yet the proof at trial (those same judgments) authorized only the Hunt County Sheriff and officials of the Department to take custody of Dickey—a material variance exists between the indictment and the proof, and Dickey should receive an acquittal.

            "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Hart v. State, 173 S.W.3d 131, 144 (Tex. App.—Texarkana 2005, no pet.) (quoting Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001)). "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Id. (quoting Gollihar, 46 S.W.3d at 247–48; and referencing Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998)).

To determine whether a defendant's "substantial rights" have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge against her or him sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.

Id. (citing Gollihar, 46 S.W.3d at 248; Brown v. State, 159 S.W.3d 703, 709 (Tex. App.—Texarkana 2004, pet. ref'd)).

            Dickey's argument is premised on the assumption that Latham could not have lawful custody of Dickey solely pursuant to those underlying judgments of conviction; Dickey argues a second order from the trial court is necessary.

            As we have held above, no such separate order was necessary. While acting as a jailer for Hunt County, Latham had lawful and proper custody of Dickey via the Board's parole revocation warrant, an entity with such warrant authority pursuant to its own custodial authority over Dickey as granted by the three underlying judgments of conviction. Thus, because the proof offered at trial showed Latham had proper custody of Dickey, there was no variance, material or otherwise, between the indictment's allegation and the proof offered at trial. Both were to the effect that Latham had proper custody of Dickey.

            We overrule Dickey's first and second points of error.

(3)       The Jury Charge Did Not Omit an Essential Element of the Offense

            In his final point of error, Dickey contends the trial court's charge to the jury failed to submit an essential element of the offense. Dickey asserts the charge "failed to distinctly set out in the application paragraph that Dixon Latham, a public servant, must have had custody of Appellant pursuant to a court order . . . ."

            When jury charge error is claimed, we must determine first whether there was error in the charge. McNatt v. State, 152 S.W.3d 645, 654 (Tex. App.—Texarkana 2004, pet. granted). If error is found, then we evaluate that error under the appropriate harm standard set forth in Almanza. Brown v. State, 122 S.W.3d 794, 803–04 (Tex. Crim. App. 2003); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). The standard of review for errors in the jury charge depends on whether the defendant properly objected. Almanza, 686 S.W.2d at 172. If a proper objection was raised, reversal is required if the error is "calculated to injure the rights of defendant." Id. In other words, an error that has been properly preserved is reversible unless it is harmless. Id. at 171. If a defendant does not object to the charge, reversal is required only if the harm is so egregious the defendant has not had a fair and impartial trial. Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana 1996, pet. ref'd). In this case, Dickey did not raise this objection to the trial court; he must, therefore, show egregious harm if indeed we find error in the charge.

            The elements of the offense of escape are "(1) escape (2) from custody (3) after having been arrested for, charged with, or convicted of an offense." See Tex. Pen. Code Ann. § 38.06 (Vernon 2003); Scott, 672 S.W.2d at 466; Russell v. State, 90 S.W.3d 865, 870 (Tex. App.—San Antonio 2002, pet. ref'd); Crowder v. State, 812 S.W.2d 63, 68 (Tex. App.—Houston [14th Dist.] 1991, pet. ref'd). The trial court's charge instructed the jury that the term "custody," as it was used throughout the charge, meant "under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States." Later, in a subsequent application paragraph, the trial court instructed the jury:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of April, 2004, in Hunt County, Texas, the defendant, Vincent Bernard Dickey, did then and there escape from the custody of Dixon Latham, a public servant, after being convicted [of] a felony offense of Theft of Property of the value of $750 or more but less than $20,000 in Cause 15,696; and/or after being convicted for a felony offense of Unlawful Delivery of a Controlled Substance, namely Cocaine, in Cause 15,818; and/or after being convicted for a felony offense of Burglary of a Habitation in Cause 15,828; or at the time the said Vincent Bernard Dickey was confined in a secure correctional facility, namely the Hunt County jail, then you will find the defendant guilty as charged in the indictment.

            Reading the application paragraph in conjunction with the definition of "custody" provided earlier in the charge, it is clear that the charge did not authorize the jury to convict Latham unless it found (1) that Dickey had escaped, (2) that Dickey had previously been under restraint by Latham, who was a public servant acting pursuant to a court order, and (3) that Dickey had been in custody in connection with any or all of three listed felony convictions. Because there was no missing element of the offense in the trial court's jury charge, the charge was correct in that respect. Harm analysis is unnecessary.

            We overrule Dickey's final point of error and affirm the trial court's judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          February 23, 2006

Date Decided:             March 14, 2006

Publish

n for truthfulness, as well as testimony specifically rebutting the defensive theory that D.G. was coached.

This point of error is overruled.

D. Plausible Trial Strategy Explained Counsel's Failure to Object to "Improper Opinion/Hearsay Statements"

Alberts next complains that the following testimony from D.G.'s mother during redirect was an improper opinion or hearsay:

Q. [By the State] You want to believe that he wouldn't do these things to your son, but the fact is, he did them, right?

A. [By D.G.'s mother] Correct.

Once again, the record is silent as to why counsel failed to object to this testimony. Thus, Alberts has failed to rebut the presumption that his counsel's decision was in some way reasonable. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). We can assume it was merely to prevent drawing the jury's attention to the testimony. Thus, we overrule this point of error as well.

IV. Error in Exclusion of Evidence and Bias at Punishment

We review the admission of evidence for whether there is an abuse of discretion such that the trial judge's decision lies outside "the zone of reasonable disagreement." Berry v. State, 179 S.W.3d 175, 179 (Tex. App.--Texarkana 2005, no pet.). The trial court must first determine if the evidence is relevant under Rule 401. Alberts argues that the trial court erred by failing to permit him to testify that he was impotent at the punishment phase. Alberts correctly declares that "[r]elevant evidence in the punishment context is that which helps the jury tailor the sentence to the particular offense and tailor the sentence to the particular defendant." Najar v. State, 74 S.W.3d 82, 86-87 (Tex. App.--Waco 2002, no pet.). He contends evidence of impotence is a mitigating factor which is not "per se inadmissible."

As the trial court explained, Alberts could have committed the acts for which he was found guilty despite impotence, the condition had no bearing of whether Alberts could or would reoffend, and ultimately would not help the jury determine his appropriate sentence. We hold the trial court did not abuse its discretion in this matter. Alberts further believes the trial court demonstrated bias because the trial court explained the reason for its ruling in the presence of the jury. After reviewing the record, we do not find the trial court failed to maintain an attitude of impartiality, acted as an advocate for the State, or otherwise exhibited bias in explaining to trial counsel why Alberts's impotence was irrelevant. As part of its explanation, the trial court remarked that if Alberts was attempting to introduce impotence as evidence of mitigation, he should have done so during the guilt/innocence phase. Alberts contends this constituted a comment by the trial court on Alberts's failure to testify during the guilt/innocence phase. We cannot reason that such a comment harmed Alberts during the punishment phase, especially since he testified during punishment. These points of error are overruled.

Finally, Alberts attempted to introduce testimony from psychologist Joann Ondrovik. After a preliminary questioning took place in order to establish Ondrovik's qualifications as an expert, Alberts's counsel asked Ondrovik if she had evaluated whether Alberts would be a good candidate for probation (community supervision) and Ondrovik responded that she had. Alberts's counsel then was able to utter, "What was your -- ," at which point he was interrupted by the State's objection urging that Ondrovik was "not in the business of deciding who gets probation." The trial court allowed the State to take Ondrovik on voir dire; during this, the State attempted to establish that Ondrovik cannot "ethically" determine whether a sex offender is cured "because you can't predict" such outcomes. The trial court did not allow Ondrovik to testify whether Alberts would be at risk for reoffending. Throughout this process, Alberts's counsel neither elicited an opinion from Ondrovik regarding Ondrovik's opinion as to whether Alberts would be a good candidate for community supervision, nor was there any other offer of evidence of that nature presented. Although one might presume that the interrupted question Alberts was posing to Ondrovik concerned whether she considered Alberts to be a good candidate for community service, that is not an absolutely ironclad presumption. The only way this Court is able to definitively ascertain the nature of the evidence which Alberts apparently intended to present is by reading Alberts's brief on appeal. To preserve error concerning a trial court's exclusion of evidence, the substance of the excluded evidence must be shown by an offer of proof unless it is apparent from the context of the questions asked. Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Here, we conclude that the evidence that Alberts was seeking to elicit from Ondrovik's answer was not apparent from the question fragment spoken by Alberts's counsel. Thus, the issue has not been preserved for our review. Alberts's last point of error is overruled.

V. Conclusion

Because we find that Alberts was subjected to multiple punishments arising out of one act involving D.G., we reverse the trial court's judgment finding him guilty of indecency with a child by exposure under cause number 22305 and render a judgment of acquittal. The trial court's remaining judgments under this cause number are affirmed.

Bailey C. Moseley

Justice

CONCURRING OPINION

It appears to me that the error in excluding Dr. Ondrovik's testimony was preserved for appellate review. After qualifying the psychologist concerning her education and experience as one who has worked with over 1,000 sexual offenders, the defense attorney established that Ondrovik had assessed and evaluated the defendant. She explained the tests used for the evaluation and then the defense attorney asked: "Did you evaluate Mr. Alberts as to whether or not he'd be a good candidate for probation? She answered that she did. The next, interrupted question, was, "What was your -- ."

At that time the State began a series of objections, interruptions, and colloquy with the trial court that continued for several typewritten pages in the record. The State objected that it was not the expert's decision whether or not probation was proper and that she had a financial interest in supervising sexual offenders. The defense attorney stated to the court that he was trying to elicit testimony from the witness revealing the result of her evaluation of Alberts for probation. At that time the trial court stated the testimony would be allowed, whereupon the State told to the court, "we're going to -- can I take this witness on voir dire?"

During the voir dire examination the State continually suggested the witness could not ethically testify whether or not a sex offender would reoffend. At the end of this voir dire the State requested the trial court exclude Ondrovik's testimony "that this person is not at risk to reoffend." Once again the defense attorney asked that the expert witness be allowed to "finish her testimony she started, as it relates to her evaluation of him and whether or not he would be a good candidate for probation." Apparently changing its mind, the trial court agreed with the State and ruled "her testimony on this matter will not go any further than what -- where we are right now." The defense attorney objected to the ruling.

A party whose evidence has been excluded must make an offer of proof at which time the substance of the evidence was made known to the court, or was apparent from the context within the questions asked. Tex. R. Evid. 103(2).

The record demonstrates, despite the continued interruptions, that defense counsel presented to the trial court the substance of the evidence the expert would offer--she had evaluated Alberts and was prepared to present evidence of whether he would be a suitable candidate for probation. Even if the offer had not explicitly apprised the court of the substance of the testimony, the questions asked and the sequence of events left nothing to the imagination--the evidence sought to be presented was readily apparent within the questions asked.

The State's brief cites this Court's opinion in Hardin v. State, 20 S.W.3d 84 (Tex. App.--Texarkana 2000, pet. ref'd), which held testimony concerning a defendant's "suitability for probation" is generally inadmissible, but was proper to rebut the defendant's evidence. Id. at 90. But the State failed to acknowledge the more recent Texas Court of Criminal Appeals opinion which specifically held that properly qualified witnesses may offer evidence of a defendant's suitability for probation (community supervision). Ellison v. State, 201 S.W.3d 714, 717 (Tex. Crim. App. 2006) (allowing a probation officer to testify to the defendant's suitability for probation (community supervision)). ⁽⁸⁾

The expert witness was in court prepared to testify; her qualifications were not challenged; she had examined Alberts to determine if he would be a candidate for probation (community supervision); the trial attorney explained several times that was the subject of her testimony; the trial court clearly understood the issue presented and excluded the evidence. The fact that she did not utter the words that she thought he was either a good or a bad candidate is, in this context, irrelevant; whatever her expert opinion, whether he was a suitable candidate for community supervision or not, the evidence was admissible. ("Today's decision gives equal opportunity to the State and a defendant to put on testimony of the defendant's suitability for community supervision." Id. at 722.) I believe the issue was preserved, and the trial court erred in excluding the testimony.

Was the error harmful and reversible? What is the likelihood that the jury would have granted Alberts community supervision if the expert's testimony had been properly allowed? An examination of the entire record reveals very damning evidence. Alberts was found guilty by this jury of committing several acts of sexual assault on young children in his family. With or without expert testimony, convincing a jury, which has found a defendant guilty of numerous acts of sexual assault on children, to release him on community supervision is a daunting task. While I believe the evidence was admissible, I would further find that its exclusion had no substantial and injurious effect or influence in determining the jury's verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). Consequently, it is not a reversible error.

I concur with the judgment reached in the majority opinion.

Jack Carter

Date Submitted: November 6, 2009

Date Decided: December 11, 2009

1. The State tried Alberts for aggravated assault of K.R. and indecency with D.G. in a single trial. See our opinion in cause number 06-09-00058-CR for disposition of Alberts's points of error involving K.R.

2.

Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.--San Antonio 2005, pet. ref'd).

3.

The State does not dispute the two convictions were the result of the same act.

4.

Other nonexclusive factors considered when determining whether the Legislature intended multiple punishments include whether the offenses are contained within the same statutory section, whether they are phrased in the alternative, whether they are named similarly, and whether the offenses have common punishment ranges. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999).

5. 224 S.W.3d 823 (Tex. App.--Texarkana 2007, no pet.).

6. 129 S.W.3d 242 (Tex. App.--Texarkana 2004, pet. ref'd).

7.

The statement that "[s]he told me the truth" is something of a half-breed which could be construed to be contained in two of Alberts's objections to his trial counsel's performance, but only tangentially to both. One observes that this statement was nonresponsive to the question which was posed by the State. Although the volunteered statement was objectionable in several respects, one might surmise that an objection lodged to this blurted response might serve more to call the jury's attention to it than withholding an objection to it. The lack of an objection to it may have been a tactical decision on the part of trial counsel.

8. The Texas Rules of Professional Conduct establish that a lawyer has a duty of candor toward the tribunal. Tex. R. Prof'l Conduct 3.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit G app. A (Vernon 2005).

(a) A lawyer shall not knowingly:

. . . .

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.