DARLING v. STATE

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Court of Appeals of Texas,Texarkana.

Tommy Walter DARLING, Appellant v. The STATE of Texas, Appellee.

No. 06-06-00148-CR.

Decided: September 10, 2008

Before MORRISS, C.J., CARTER and MOSELEY, JJ. John Hagler, Dallas, for appellant. Steven Lilley, Asst. Dist. Atty., Martin Braddy, Dist. Atty., Sulphur Springs, for appellee.

OPINION

The previous ruling in this case as decided on August 13, 2008,1 is withdrawn and this opinion is rendered in its stead.

Tommy Walter Darling appeals his conviction for aggravated sexual assault of a child.   This case was consolidated and tried with three other cases in which Appellant was charged with aggravated sexual assault of a child and one other case in which he was charged with indecency with a child.   This appeal raises several issues.   For the reasons set forth below, we find no reversible error in this case and affirm the trial court's judgment.

Factual and Procedural Background

Twelve indictments were returned against Appellant for the charges of aggravated sexual assault and indecency with a child;  the charges involved three different child victims, and the crimes occurred on several different dates.   Two of the three victims were molested in the early and mid-1990s;  the third victim was abused in December 2004.   Darling initially asked the trial court to sever each charge from the trial of the others, thereby creating the potential for twelve individual trials.   See generally Tex. Penal Code Ann. § 3.04 (Vernon Supp.2008).   At the hearing on the severance motion, Appellant agreed that the early and mid-1990s allegations (involving two different victims) should be tried together.   He did, however, continue to assert that the early 1990s charges should be tried separately from the 2004 crime.   Ultimately, the trial court denied the severance motion in its entirety and permitted the State to prosecute all twelve cases as part of a single proceeding.

Before submitting the case to the jury, the State elected to have only five of the twelve charges sent to the jury for determination of guilt/innocence.   The jury found Appellant guilty of aggravated sexual assault of a child in four of those cases and guilty of indecency with a child by contact in the fifth case.   After hearing evidence regarding punishment, the jury assessed Appellant's punishment at imprisonment for life and a $10,000.00 fine on the aggravated sexual assault charges and at twenty years' imprisonment and a fine of $10,000.00 in the indecency with a child case.

Denial of Severance Motion

In his first three points of error, Appellant contends that the trial court erred by failing to grant his motion to sever the various charges leveled against him (issues 1 and 2) and that he was unfairly prejudiced by such joinder (issue 3).   The State claims Appellant failed to preserve these precise issues for appeal.   Alternatively, the State contends Appellant waived this issue as it relates to this case.

(A) The Severance Statute

 Under certain circumstances, our law permits courts to sever the trials of a defendant facing multiple charges.   The current applicable provision of the Texas Penal Code provides:

(a) Whenever two or more offenses have been consolidated or joined for trial under [Penal Code] Section 3.02, the defendant shall have a right to severance of the offenses.

(b) In the event of severance under this section, the provisions of Section 3.03 do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.

(c) The right to severance under this section does not apply to a prosecution for offenses described by [Penal Code] Section 3.03(b) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

Tex. Penal Code Ann. § 3.04.   The right to a severance under the current version of Section 3.04 is absolute, except for joinder of sexually based offenses that are governed by Section 3.03 of the Texas Penal Code. See Scott v. State, 235 S.W.3d 255, 257-58 (Tex.Crim.App.2007) (analyzing applicable exceptions to mandatory severance).  Section 3.03 concerns sentences for offenses arising out of the same criminal episode.   See Tex. Penal Code Ann. § 3.03 (Vernon Supp.2008).   Additionally, if an accused waives that severance right, or if the defendant fails to request a severance, the joinder and prosecution of multiple indictments in a consolidated trial is permissible.  Milligan v. State, 764 S.W.2d 802, 803 (Tex.Crim.App.1989);  Johnson v. State, 509 S.W.2d 322, 323 (Tex.Crim.App.1974).   For purposes of whether to sever the trials under the current Texas Penal Code, the term “criminal episode” means either “the offenses [sought to be joined] are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan” or “the offenses [sought to be joined] are the repeated commission of the same or similar offenses.”  Tex. Penal Code Ann. § 3.01 (Vernon 2003).

However, the current version of Section 3.04 applies only to crimes that were committed after September 1, 1997, the effective date of the current statute.   See Act of May 21, 1997, 75th Leg., R.S., ch. 667, § 3, 1997 Tex. Gen. Laws 2250, 2252 (effective Sept. 1, 1997) (amended 2005) (current version at Tex. Penal Code Ann. § 3.04).   Most of the criminal acts with which the Appellant was charged occurred before 1997;  only one occurred after 1997.

The prior version of Section 3.04 provided:

(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02 of this code, the defendant shall have a right to a severance of the offenses.

(b) In the event of severance under this section, the provisions of Section 3.03 of this code do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.

Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (effective Jan. 1, 1974) (amended 1993, 1997, and 2005) (current version at Tex. Penal Code Ann. § 3.04).   This older version of Section 3.04 applied during the period lasting from January 1, 1974 to August 31, 1997.   See id.   Additionally, between 1974 and August 31, 1997, Section 3.03 provided, “When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced.   Such sentences shall run concurrently.”   Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (effective Jan. 1, 1974) (amended 1993, 1997, and 2005) (current version at Tex. Penal Code Ann. § 3.04).   This prior version of Section 3.04 lacked the sex offense exceptions to severance that appear in the current statute.   Compare Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (amended 1993, 1997, and 2005), with Tex. Penal Code Ann. § 3.04.

 Appellant now contends a severance for all his cases was mandatory because all but one of those charges were governed by the pre-1997 mandatory severance version that did not include the sex-offense exception currently found in Section 3.03.   Yet, such argument ignores the fact that Appellant agreed at trial that the charge in the current case should be tried together with the remaining charges of aggravated sexual assault, given the close temporal proximity of those charges.   After making this concession, Appellant's sole remaining objection was to having those cases tried with the charge of indecency with a child charge stemming from conduct in 2004.

By agreeing to the joinder of the four aggravated sexual assault charges, Appellant waived his first, second, and third points of error with respect to the joint trial of those cases.   Thus, the issue that remains is whether the trial court erred by permitting joinder of the 2004 indecency charge with the aggravated sexual assault charges.2

(B) The Trial Court Should Have Severed the Indecency Case from the Other Charges

 If two or more offenses are joined under Section 3.02, the accused nonetheless has the right to have separate trials of those offenses.  Tex. Penal Code Ann. § 3.04(a).   As noted above, and under the version of the severance statute applicable to Appellant's charges of aggravated sexual assault of a child (which occurred before 1997), Appellant had an absolute right to have a different jury determine his guilt in the current case than the jury that determined his guilt in the 2004 indecency case.   See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (amended 1993, 1997, and 2005).   Accordingly, we conclude the trial court erred by failing to have the 2004 indecency charge tried separately from the allegations of aggravated sexual assault of a child.   Cf. Llamas v. State, 12 S.W.3d 469, 470 (Tex.Crim.App.2000) (citing Warmowski v. State, 853 S.W.2d 575, 581 (Tex.Crim.App.1993)).

 “A trial judge's failure to grant a mandatory severance under Section 3.04 is subject to a harm analysis, and the error is harmless if it did not adversely affect the defendant's substantial rights.”  Scott, 235 S.W.3d at 257 (citing Llamas, 12 S.W.3d at 470;  and referencing Tex.R.App. P. 44.2(b));  see also Llamas v. State, 991 S.W.2d 64, 68 (Tex.App.-Amarillo 1998), aff'd, 12 S.W.3d 469 (Tex.Crim.App.2000).   “Substantial rights are not affected ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect.’ ”  Owens v. State, 135 S.W.3d 302, 310 (Tex.App.-Houston [14th Dist.] 2004, no pet.);   see also Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).  “To judge the likelihood that harm occurred, appellate courts must consider everything in the record including all the evidence admitted at trial, the closing arguments, and ․ the jurors' comments during voir dire.”  Scott, 235 S.W.3d at 257 (quoting Llamas, 12 S.W.3d at 471);  see also Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997) (requiring appellate harm analysis when trial court erred by denying severance motion).

(C) The Severance Denial Did Not Result in Reversible Error

 The record contains significant evidence to support the jury's finding of guilt in this case.   The indictment alleged that Appellant,

on or about the 11th day of February, 1992, and before the presentment of this indictment, in said County and State, did then and there intentionally or knowingly cause the penetration of the sexual organ of ․ a child who was then and [there] younger than 14 years of age and not the spouse of the defendant, by the defendant's finger.

The named victim in this case (who was sixteen years old at the time of trial) testified that when she was much younger, she would sometimes spend the night at Appellant's house.   She testified that Appellant would touch her inappropriately at night after she fell asleep.   She would wake up during these assaults, which involved Appellant putting his finger inside her panties, touching her genital area, and putting his finger inside her genitals.   She told the jury that she endured the contact each time for “a pretty long time.”   The victim testified that Appellant molested her every time she spent the night at his house.   She eventually made an outcry to her great-grandmother, Jane Green, regarding the abuse.3  The victim's testimony made it clear that the abuse occurred more than ten years earlier, at a time when she would have been younger than fourteen years of age.

The jury also heard from the victim's older sister, who was herself molested in the same way as the victim in this case.4  This older sister, who was eighteen at the time of trial, testified that when she was much younger, she would spend the night at Appellant's house.   According to her, after she had gone to sleep in the same bed as Appellant and his wife, Appellant would

put his fingers-he would, like, rub his finger around and then put his finger inside me (sobbing).   And sometimes I would move his hand, and he would just put it right back.   And I'd move his hand again and he would just keep on moving it back.   We were wanting him to stop (sobbing).   That's what he did whenever we spent the night over there.

This sister later testified that the molestation by Appellant occurred on more than five different occasions.   One of those occasions occurred when this older sister was but nine years of age, and of which she offered the following description of events:

[H]e kept putting his hand, and it was hurting so bad, and I would move his hand, and he would just put it back, like right back.   He would just keep on and on and on, and he just kept on moving his hand, and I kept on moving it back over to the right, and he just kept on doing it, kept on doing it.   And I just remember wanting him to stop, because it hurt (sobbing).

The sister later talked to the victim in this case about being molested by Appellant;  it was during this discussion that both girls first learned that the other had been sexually abused in the same way by Appellant.   The two then went to their great-grandmother to tell her about the sexual abuse.

Green testified that when the victim in this case would sometimes spend the night at Green's house, and while the victim was taking her bath, she would sometimes “holler” in pain.   Green explained that the victim later told Green that the hot water made the victim's sexual organ feel as if it were burning.   Green asked the victim to show her the hurting area, and the victim complied.   Green said the young girl's sexual organ appeared “red, rubbed red, raw-looking.”   Green initially thought the victim's inflamed sexual organ was the result of a kidney infection or some other common illness.   But she later learned that those injuries were the result of the victim being sexually molested by Appellant.   The victim was still in kindergarten at the time of this particular incident.   Green further noted that the victim's older sister had expressed similar feelings of burning and pain in her sexual organ while taking baths at Green's house.   Eventually the victim and her older sister came to Green in 1995, both telling Green that Appellant had been molesting them.

In closing arguments, the State reviewed (1) the evidence supporting Appellant's conviction in this case, (2) the evidence supporting Appellant's conviction in the second case involving the same victim, (3) the evidence supporting Appellant's conviction in the two remaining cases in which this victim's older sister was alleged to have been sexually assaulted, and (4) the evidence that the State claimed would support Appellant's conviction in the 2004 indecency charge.   The thesis of the State's argument was quite simple:  If the jury believed the victims were telling the truth, it should find Appellant guilty.   The State then presented the jury with several arguments as to why it should find the victims' testimonies to be credible.

In his closing argument, Appellant argued that the State had failed to prove its case beyond a reasonable doubt in each of the five cases.   He asserted that merely because the State brought forth five allegations, such a quantity of accusations did not absolve the State from its burden to bring forth proof to substantiate each allegation;  it was not enough for the jury merely to conclude Appellant was guilty based solely on the quantity of charges brought forth by the State rather than on evidentiary merit.

While Appellant's closing argument touched on each of the charges and the credibility of the named victims, he focused primarily on the 2004 indecency charge and the lack of credible evidence in that specific case.   His discussion of the propriety of the aggravated sexual assault allegations was limited, and he made only a few references as to why the jury should find the victims' testimonies in those cases to be incredible.

Finally, while the briefs of neither party directed our attention to any portion of the 315-page portion of the record for voir dire that would have been relevant to analyzing this issue of harm,5 we have independently reviewed the entirety of the voir dire proceedings and have concluded that none of the jurors' answers during voir dire support the proposition that Appellant suffered harm based on the trial court's erroneous denial of the severance motion.6  In fact, all those prospective jurors who were specifically asked about such during voir dire promised to hold the State to its burden of proof and not vote to convict Appellant merely because he faced multiple charges within a single proceeding.   Contrast Llamas, 12 S.W.3d at 471-72 (several jurors expressed concern during voir dire about fact that accused faced multiple charges within single proceeding).

Therefore, after reviewing the entire record (including all the evidence admitted at trial, closing arguments from both sides, and voir dire), we can say with fair assurance that the trial court's erroneous denial of Appellant's motion to sever the older charges for aggravated sexual assault from the 2004 indecency charge did not impact Appellant's substantial rights.   Accordingly, we overrule Appellant's first three points of error.7

Solicitation of Testimony that Appellant Had Been Offered a Polygraph Test

 In the only remaining issue relevant to the trial court's judgment in this case, Appellant contends the trial court erred by permitting both Henry Turner (an investigator with the Hopkins County Sheriff's Department) and Russell Stillwaggoner (a lieutenant with the Sulphur Springs Police Department) to testify that Appellant had been offered a polygraph examination.   The results of a polygraph examination are generally inadmissible for any reason because such testing is inherently unreliable.   See, e.g., Robinson v. State, 550 S.W.2d 54, 59 (Tex.Crim.App.1977);  Harty v. State, 229 S.W.3d 849, 851 n. 2 (Tex.App.-Texarkana 2007, pet. ref'd).

Appellant admits that the witnesses never used the word “polygraph” to describe the testing offered.   He does, however, argue that the State's line of questioning allowed the jurors to infer Lieutenant Stillwaggoner had offered a polygraph or similar “lie detector” test to the Appellant, which was improper.

In this case, none of the witnesses ever used the word “polygraph” or the phrase “lie detector test” to describe the “additional scientific testing” that was ostensibly offered to Appellant.   Nor did any of the witnesses affirmatively testify that Appellant refused to take such a polygraph examination.   Nor did the State seek to admit the results of this nonexistent polygraph examination.   And it is at least possible that given the context of the testimony, the trial court could have concluded these witnesses were referring to any other of a various assortment of scientific testing such as DNA testing, X-ray testing, or blood glucose testing.   To presume anything more based on the appellate record would require us to resort to the rankest of speculation.   Accordingly, we cannot say the record before us supports the conclusion that the trial court abused its discretion.   We overrule this point of error.

Conclusion

Appellant raises no other issues that are relevant to the trial court's judgment in this case.   Accordingly, for the reasons stated, we conclude Appellant has not demonstrated that reversible error occurred in the trial of this case.

We therefore affirm the trial court's judgment.

FOOTNOTES

1.   Darling v. State, No. 06-06-00148-CR, 2008 WL 3367539, 2008 Tex.App. LEXIS 6108 (Tex.App.-Aug. 13, 2008, no pet. h.).

2.   We remind all trial courts that they must make a special effort to carefully review severance motions in all cases involving multiple charges of sexually based offenses.   These specialized motions require an intensive review of the allegations involved.   Trial courts would be wise to use the offense date(s) alleged in the indictment(s) to identify correctly the applicable severance law(s) in effect on the date of that alleged offense.   And both sides of the bar must provide the bench with better assistance in identifying and applying the applicable severance statute(s).  Such concerted effort by all parties will benefit the bench, the bar, the victims, and the trial witnesses by hopefully decreasing the likelihood that the trial court is led perilously close to the abyss of reversal through an inadvertent-but nonetheless erroneous-joinder.

3.   Though the great-grandmother timely reported this outcry of abuse, state officials in 1995 did not, for whatever reason, take subsequent steps to investigate and/or prosecute the Appellant.

4.   Two of Appellant's companion appeals concern convictions for aggravated sexual assault of a child wherein the named victim was this older sister.

5.   See Tex.R.App. P. 38.1(h) (appellant's brief must contain appropriate citations to record), 38.2 (same);  Ledbetter v. State, 208 S.W.3d 723, 735-36 (Tex.App.-Texarkana 2006, no pet.).

6.   During voir dire, the State asked the prospective jurors to require the State to prove each charge beyond a reasonable doubt and to not convict Appellant merely based on the quantity of charges.   None of the prospective jurors said they would lessen the State's burden merely because Appellant faced multiple charges of sexually based offenses.

7.   Cf. Scott, 235 S.W.3d at 259-61 (no allegation defensive strategy would have been different absent improper joinder;  different juries would have likely learned of extraneous conduct anyway);  Hulsey v. State, 211 S.W.3d 853, 858 (Tex.App.-Waco 2006, no pet.) (record did not demonstrate harm inasmuch as appellant's defense to each charge was same:  that victim was lying).

Opinion by Justice MOSELEY.

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