STEVEN NEAL SPURGEON v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Myers

Appellant, Steven Neal Spurgeon, waived his right to a jury trial and pleaded nolo contendere to one charge of indecency with a child by contact ¹ and two charges of aggravated sexual assault of a child.²  The trial court found him guilty of all three offenses and sentenced him to twenty years in prison in the indecency with a child offense and thirty years in each of the aggravated sexual assault of a child cases.   In only one issue, appellant argues the trial court erred when it overruled objections to two instances of alleged hearsay evidence.   We affirm.

Discussion

Payton Allen's Testimony

Payton Allen testified that he knew appellant and the complainant through his father, Jeff Allen, and appellant's sister, Tonya.   Payton was present at Tonya's house with the complainant and the complainant's ex-boyfriend, Keyvon, as well as the complainant's cousin, Michael, on the night of the last incident of abuse.   Payton testified that, at approximately 11:00 p.m. or 12:00 a.m., he and Michael were watching television in the living room.   Tonya was sleeping.   Appellant was lying down in his room.   Keyvon and the complainant were in Michael's room with the door closed and locked.   According to Payton's testimony, appellant became angry when he went to the bathroom and discovered that Keyvon and the complainant were alone together in the bedroom.   Appellant ordered them to open the door and told the complainant to go to his bedroom.   The record then reads in part as follows:

Q. [PROSECUTOR]:  And did she ever come out that night?

A. [PAYTON ALLEN]:  No.

Q. How was [the complainant] acting when she went into his room?

A. She was—me and Keyvon and Michael heard her crying.

Q. Did you hear her say anything?

A. Keyvon said he heard her say “Stop.”

[DEFENSE COUNSEL]:  Your Honor, I object to hearsay.

THE COURT:  That's overruled.

The State acknowledges that Payton's testimony “about what Keyvon said is hearsay to which no exception applies.”   We agree.   We must therefore determine whether appellant was harmed by the erroneous admission of the hearsay statement.

Error in the admission of evidence is non-constitutional error subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure.  Tex.R.App. P. 44.2(b);  see Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998);  Jabari v. State, 273 S.W.3d 745, 754 (Tex.App.—Houston [1st Dist.] 2008, no pet.).   Under this analysis, we disregard any non-constitutional error that does not affect substantial rights.  Tex.R.App. P. 44.2(b).  A substantial right is affected when the error had a substantial and injurious effect or influence on the outcome of the proceeding.  Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002);  King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).   The improper admission of evidence does not constitute reversible error if other properly admitted testimony proves the same facts.   See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999);  Jabari, 273 S.W.3d at 754;  Bourque v. State, 156 S.W.3d 675, 677 (Tex.App.—Dallas 2005, pet. ref'd).

After examining the entire record, we have fair assurance the error did not have a substantial and injurious effect or influence in determining the verdict.   We base this conclusion on the fact that,

by the time Payton testified, the complainant had already testified to the incident referenced in Payton's statement.   During the guilt-innocence phase of the trial, the complainant testified without objection that, on the night in question, appellant became angry when he realized the complainant and Keyvon were alone in Michael's bedroom with the door closed and locked.   Appellant ordered the complainant to his bedroom and did not allow her to leave or have any further contact with the other occupants of the house that night.   The complainant also testified that, while she was in the bedroom with appellant and the boys were sleeping in the living room, appellant touched her vagina with his hand.   In addition, City of Mesquite police detective Brent Ehrenberger testified that, when appellant was interviewed on the day of his arrest, he told the detective that Keyvon, Michael, and Tonya were present at the house on the night in question, and that appellant was upset because the complainant was in the bedroom alone with Keyvon.   Appellant also admitted that he touched the complainant's vagina with his finger.   We therefore conclude the error was harmless.

The Complainant's Diary

Joanna, the complainant's mother, testified at the guilt-innocence phase of the trial that the complainant was “hurt,” “upset,” and “angry” after making the initial outcry, and she “really didn't want to talk” to Joanna about the abuse.   The complainant would talk to her therapist, but would not talk to anyone else.   Joanna gave the complainant a diary and encouraged her to write about her thoughts and feelings.   The complainant usually kept the diary hidden, but on one occasion Joanna found it “laying out in the living room.”   Joanna thought this was a “cry for help” or a signal that the complainant “wanted us to read it,” so Joanna read the diary and then gave it to the prosecution.

At the punishment phase of the trial, the State offered the diary into evidence.   Appellant objected that the diary was hearsay and irrelevant.   The trial court overruled the objection, and the prosecutor read the following passage to the jury:

I close my eyes not wanting to see the shape of his body forming around me.   The silent tears scream from my eyes at this agonizing pain I do not recognize.   He tells me the pain will not last long.   Oh, how I wish he knew he was completely wrong.   I plead and plead for him to quit, but it is as if he can't resist.

The shape of my body, the taste of my flesh, and how I cringe away from every caress.   I softly beg, “Daddy, please not again tonight.”   But his only reply is, “Baby girl, it goes faster if you don't fight.”

The State closed its punishment case and presented no other testimony from the complainant or any other witnesses.

We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002);  Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001).   As long as the court's ruling falls within the zone of reasonable disagreement, we should affirm.  Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003).   Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted.  Tex.R. Evid. 801(d).  Hearsay statements are generally inadmissible.  Tex.R. Evid. 802.   But there are a number of exceptions to this general rule.   See Tex.R. Evid. 803.   Under the “state of mind” exception, a statement is not excluded by the hearsay rule if it is:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Tex.R. Evid. 803(3).

A statement that would otherwise be admissible under the state of mind exception to the hearsay rule is inadmissible if it is a “a statement of memory or belief” offered to “prove the fact remembered or believed.”   See id;  Gibbs v. State, 819 S.W.2d 821, 837 (Tex.Crim.App.1991).   According to appellant, the diary excerpt was inadmissible because it did not fall within any exception to the hearsay rule.   We disagree.   The diary excerpt was admitted during the punishment phase of the trial, when it was no longer in dispute that appellant had sexually abused the complainant.   The only issue before the court at that point was proper punishment.   The statement was not offered to prove the fact remembered or believed, but as punishment evidence to show the complainant's state of mind while recovering from the abuse, and as evidence of the physical pain and emotional turmoil appellant inflicted on the complainant over a period of years.   We also note that the code of criminal procedure provides that evidence may be offered at the punishment stage as to any matter the court deems relevant to sentencing.  Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1).   We conclude that the statement was admissible under the “state of mind” exception to the hearsay rule.   We overrule appellant's issue.

We affirm the trial court's judgments.

FOOTNOTES

FN1. Trial court cause number F09–01398.   Appeal number 05–10–00645–CR..  FN1. Trial court cause number F09–01398.   Appeal number 05–10–00645–CR.

FN2. Trial court cause numbers F09–40494 and F09–40495.   Appeal numbers 05–10–00646–CR and 05–10–00647–CR, respectively..  FN2. Trial court cause numbers F09–40494 and F09–40495.   Appeal numbers 05–10–00646–CR and 05–10–00647–CR, respectively.

LANA MYERS JUSTICE