Alfred Llewelyn Carty v. State

Opinion issued August 4, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01266-CR

NO. 01-03-01267-CR

ALFRED LLEWELYN CARTY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 954561 & 950073

OPINION ON REHEARING

We grant appellant’s motion for rehearing, withdraw our opinion issued

November 10, 2004, and issue this opinion in its place.

Appellant, Alfred Llewelyn Carty, was charged in two separate indictments

with first-degree felony offenses of aggravated sexual assault of his six-year-old

daughter, J.C. Appellant pleaded not guilty and the cases were consolidated for trial.

A jury found appellant guilty of both offenses. The trial court assessed punishment

at 14 years in prison for each charged offense, with the sentences to run concurrently .

Appellant presented five issues on appeal. In his first three issues, appellant argues

that the trial court erred by (1) admitting into evidence records from the Children’s

Assessment Center; (2) admitting into evidence the testimony of Tammy Urban

regarding the complainant’s “outcry” statement; and (3) submitting a disjunctive jury

charge in cause number 01-03-01266-CR , which allowed conviction on a non-unanimous verdict. In his fourth and fifth issues, appellant asserts legal and factual

insufficiency of the evidence to support the jury’s verdict. We affirm the judgment

of the trial court in cause number 950073 . We sustain appellant’s third issue, reverse

the trial court’s judgment in cause number 954561, and remand that cause for further

proceedings.

BACKGROUND

At the time of the sexual assault, appellant and his common-law wife were

separated. Appellant had moved out of the family’s apartment and into his own

apartment sometime in the spring of 2002. The couple’s two children, six-year-old

J.C. and her brother, who was 13 years old when he testified at trial, continued to live

primarily with their mother. However, the children frequently stayed overnight at

appellant’s one-bedroom apartment, especially on weekends. On these overnight

visits, the children and appellant would sleep in the same bed.

Appellant was indicted for two sexual assaults of J.C. The first assault for

which appellant was indicted (“the first assault”)

took place on or about September

1, 2002. The second assault for which appellant was indicted (“the last assault”)

took place on or about October 31, 2002.

J.C. testified that appellant touched her “more than once” with his “private

part” both on the outside and the inside of her sexual organ. Although J.C. used

immature terms in her testimony, the prosecutor had J.C. indicate on a girl doll what

part of her body “between the legs” referred to. The record shows that J.C. indicated

the vaginal area and vaginal opening of the doll as being “between the legs” and that

it was where she would “go number one.” The prosecutor also had J.C. indicate on

a boy doll what part of appellant’s body “his private parts” referred to. The record

shows that J.C. indicated the male genital area of the boy doll.

J.C. testified that, prior to placing his penis in contact with her sexual organ

and penetrating her with his penis, appellant would put Vaseline on his penis. J.C.

was asked if she saw appellant put the Vaseline on his private part, and J.C.

responded, “Sometimes, but not all the time.” J.C. testified that appellant would

touch her sexual organ with his index and middle fingers. J.C. was also asked

whether her brother was always there when appellant did this, and she responded by

saying that her brother would “[s]ometimes be somewhere else.”

According to the outcry witness, Tammy Urban, J.C. told her that appellant

sexually assaulted her every time she stayed overnight at his apartment. Urban

elicited details about the assaults. In describing the last assault, J.C. told Urban that

appellant pulled her nightgown up and her panties down. Appellant then put Vaseline

on and inside her sexual organ with his hand, penetrating her sexual organ with his

finger. Appellant then placed his penis in contact with J.C.’s sexual organ and then

penetrated her sexual organ with his penis and ejaculated.

In late 2002, sometime between Thanksgiving and Christmas, J.C. informed her

mother that appellant was molesting her. There is no evidence in the record

indicating whether J.C. ever told her mother any details about the assaults. Her

mother instructed J.C. to tell her brother about the molestation, but not to tell anyone

else. After telling her mother about the abuse, J.C. never visited appellant again.

On April 30, 2003, an anonymous report was made to the child protective

service (“CPS”) abuse hotline. On May 14, 2003, CPS caseworker Amy McAndrew

took J.C. and her brother from school and drove them to CPS’s Children’s

Assessment Center (the “CAC”) where both children were interviewed by CPS

investigator Tammy Urban. J.C. described for Urban details of the abuse and

identified appellant as the assailant. Later, J.C. was examined by Dr. Rebecca

Girardet. Both children were placed in the care of a maternal aunt.

DISCUSSION

The State asserts that appellant waived his rights to appeal and urges us to

dismiss. The State bases this claim on the fact that, at the time appellant and the State

agreed to a sentence recommendation, they executed standard plea agreement

documents, which included a waiver of appeal. The trial court, at that time, also

certified that appellant had entered a plea bargain and had no right to appeal. It is

obvious from the record , however, that appellant had a jury trial in both cases pursuant

to his pleas of not guilty. Further, as the State should have noted, the trial court

subsequently filed corrected documents certifying appellant’s right to appeal.

Disjunctive Jury Charge

In his third issue, appellant asserts that the trial court erred by submitting a

disjunctive jury charge in the case involving the first assault. Appellant contends that

this error allowed him to be convicted on less than a unanimous verdict. The

indictment for the first assault alleged that appellant had assaulted J.C. in three

alternative ways: (1) by placing his sexual organ in contact with J.C.’s sexual organ;

(2) by penetrating her sexual organ with his finger; (3) by penetrating her sexual organ

with his sexual organ. The jury charge for the case involving the first assault was

given in the disjunctive—allowing the jury to convict if it found appellant had

sexually assaulted J.C. in any one of the three alleged manners. Appellant contends

that this allowed a conviction even if the jury’s verdict was not unanimous.

When reviewing a trial court’s jury instructions, we first determine whether the

jury charge was erroneous. Nguyen v. State , 811 S.W.2d 165, 167 (Tex.

App.—Houston [1st Dist.] 1991, pet. ref’d).

Generally, appellant’s claim of jury charge error would be without merit. A

single indictment may present allegations of different methods of committing the

charged offense in the conjunctive and the jury may be charged in the disjunctive.

Kitchens v. State , 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Rodriguez v. State ,

89 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). There is no

general requirement that the jury reach agreement on the preliminary factual issues

that underlie the verdict. Kitchens , 823 S.W.2d at 259 . “It is well settled that when

alternative theories of committing the same offense are submitted to the jury in the

disjunctive, the jury may return a general verdict if the evidence is sufficient to support

a finding under any of the theories submitted.” Bogany v. State , 54 S.W.3d 461, 463

(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

However, the Court of Criminal Appeals decision in Vick v. State held that,

under Penal Code section 22.021, a charge for the offense for which appellant was

indicted was not subject to this general rule. 991 S.W.2d 830 (Tex. 1999). In Vick ,

the Court of Criminal Appeals concluded that the Legislature intended each separately

described act proscribed by section 22.021 to constitute a separate statutory offense.

Id . at 832–33. Thus, in this case, submitting the charged offenses in the disjunctive

made it possible for some of the jurors to have found that appellant guilty of digital

penetration of J.C.’s sexual organ while other jurors chose to find appellant guilty of

penetrating or contacting J.C.’s sexual organ with his sexual organ. Appellant was

entitled to a unanimous jury verdict, and we hold that the trial court erred in

submitting a disjunctive jury charge on the first assault. See Hendrix v. State , 150

S.W.3d 839 , 848–49 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding that

trial court erred in submitting disjunctive charge).

Having found error in the court’s charge on the first assault, we must determine

whether sufficient harm resulted from the error to require reversal. When, as here, a

defendant has made a timely objection and there is error, reversal is required if there

is “some harm to the accused from the error.” Almanza v. State , 686 S.W.2d 157, 171

(Tex. Crim. App. 1984) (op. on reh’g). Thus, we must reverse provided the error is

not harmless. Id. To determine whether there is harm, we must evaluate “the entire

jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole.” Id. Some harm means any actual harm,

regardless of degree. Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

But we must measure the error’s harmfulness at least in part against the likelihood that

the verdict was actually based on another theory of culpability unaffected by the

erroneous charge. Govan v. State , 682 S.W.2d 567 , 570–71 (Tex. Crim. App. 1985),

overruled on other grounds by Brown v. State , 716 S.W.2d 939, 945 (Tex. Crim. App.

1986); see also Atkinson , 934 S.W.2d 896, 897 (Tex. App.—Fort Worth 1996)

(analyzing harm after remand by Court of Criminal Appeals in Atkinson v. State , 923

S.W.2d 21, 27 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State ,

78 S.W.3d 352, 356 (Tex. Crim. App. 2002)).

The Texas Constitution guarantees due course of law and provides that a

defendant charged with a felony must be convicted by a unanimous jury. See Tex.

Const. art. I, § 19, art. V, §13; see also Tex. Code. Crim. Proc. Ann. art. 36.29

(Vernon Supp. 2004-2005). Regarding the first assault, after examining the entire jury

charge, the jury verdict, the disputed and undisputed evidence, the weight of the

probative issues, and the arguments of counsel, we conclude that charging the jury in

the disjunctive produced at least some actual harm to appellant because the error in the

charge enabled the jury to return a non-unanimous guilty verdict. See Hendrix , 150

S.W.3d at 849 .

We sustain appellant’s third issue and therefore need not consider appellant’s

remaining issues regarding trial court cause number 954561 . Thus, we will consider

appellant’s remaining issues only as they regard trial court cause number 950073 .

Legal Sufficiency

In his fourth issue, appellant complains that the evidence was legally

insufficient for the jury to find appellant guilty. In reviewing the evidence on legal

sufficiency grounds, we view the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d

556, 562 (Tex. Crim. App. 2000); Jackson v. Virginia , 443 U.S. 307 , 318–19, 99 S.

Ct. 2781 , 2788–89 (1979).

Appellant specifically argues that, even if the evidence is sufficient to support

a jury finding that he penetrated J.C.’s sexual organ with his penis, the evidence only

supports such penetration on one occasion and not two. Thus, according to appellant’s

argument, his conviction in one of the cases must be reversed because the evidence

was not legally sufficient to permit a jury to rationally find that he committed two

separate acts of penile penetration.

A review of the record yields legally sufficient evidence to support more than

one act of penile penetration. J.C. testified at trial that appellant touched her inside

her vagina, which she referred to as the part of her body “between the legs,” with his

“private part” “more than once.” Appellant’s assertion that J.C.’s testimony was “not

specific enough” to prove two distinct occasions of penile penetration is incorrect.

Furthermore, Urban testified at length about the outcry statement, and her testimony

regarding J.C.’s statement was consistent with J.C.’s testimony that appellant

penetrated her sexual organ with his penis on more than one occasion.

We overrule appellant’s fourth issue.

Factual Sufficiency

In his fifth issue, appellant complains that the evidence is factually insufficient

to sustain the jury’s verdicts finding appellant twice guilty of aggravated sexual

assault of a child. Because we have sustained appellant’s issue regarding the first

assault, we need not address the factual sufficiency of the evidence to support

appellant’s conviction for the last assault. Appellant admits that there is evidence

supporting guilt, but asserts that it is “too weak” and that contrary evidence exists that

renders the evidence factually insufficient. We disagree.

In a factual sufficiency review, we view all the evidence in a neutral light, and

we will set the verdict aside only if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust, or the contrary evidence is so strong that the standard of

proof beyond a reasonable doubt could not have been met. Escamilla v. State , 143

S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144 S.W.3d 477, 481

(Tex. Crim. App. 2004)). The appellate court should not substitute its own judgment

for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App.

1996).

Although she is a child, J.C.’s testimony alone is sufficient to support

appellant’s conviction. Ruiz v. State , 891 S.W.2d 302, 304 (Tex. App.—San Antonio

1994, pet. ref’d). Urban’s testimony regarding the outcry statement corroborates J.C.’s

testimony. See Rodriguez v. State , 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)

(“[O]utcry testimony admitted in compliance with Art. 38.072 is admitted as an

exception to the hearsay rule, meaning it is considered substantive evidence,

admissible for the truth of the matter asserted in the testimony.”). This testimony

stands uncontradicted and is not “so weak that the verdict is clearly wrong and

manifestly unjust.” See Escamilla, 143 S.W.3d at 817 .

Appellant cites as evidence “contrary to the verdict,” that J.C. did not exhibit

obvious signs of physical or emotional trauma and had no behavioral problems, that

J.C.’s brother slept in the same bed and professed ignorance of the assaults, and that

J.C. and her brother were each given a stuffed animal by “an official employed by the

government.” But Dr. Girardet examined J.C. more than four months after the last

assault and testified that most sexually abused children do not exhibit any physical

evidence of the assault—even while the abuse is ongoing. Further, Dr. Lawrence

Thompson, a clinical psychologist at the CAC, testified that some victims of child

abuse are “overtly asymptomatic” but that “there can be a lot of emotional turmoil

going on within them that just isn’t showing itself in sort of the common ways.” J.C.

testified that her brother was asleep on the floor in front of the television during one

of the assaults. Her brother testified that he was a very “heavy sleeper” when asked

by appellant’s trial counsel if he had heard anything.

Finally, appellant complains that a court services employee committed an

impropriety by giving J.C. and her brother “gifts prior to eliciting information.”

Appellant seems to assert that this is evidence “contrary to the verdict.” However, the

employee gave the children the toys months after J.C.’s outcry statement accusing

appellant of the assaults. The employee was not an investigator. Her job was to

accompany J.C. to the courtroom. All this testimony, including the opinion of other

witnesses as to whether such gifts were improper when given, was in evidence for the

jurors to consider when weighing the children’s testimony.

The evidence appellant cites as “contrary to the verdict” is either not contrary

or goes to the weight the jury gave to particular witnesses or certain testimony. The

jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight

to be given to the witnesses’ testimony. Jaggers v. State , 125 S.W.3d 661, 671 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none

of any witness’s testimony. See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App.

1986) (stating that jury “could choose to believe or not believe the witnesses, or any

portion of their testimony”) . A jury decision is not manifestly unjust merely because

the jury resolved conflicting views of evidence in favor of the State. Cain v. State ,

958 S.W.2d 404, 410 (Tex. Crim. App. 1997). After reviewing all of the evidence in

a neutral light, we do not find the evidence is so weak that the verdict is clearly wrong

and manifestly unjust, nor do we find that the contrary evidence so strong that the

standard of proof beyond a reasonable doubt could not have been met.

We overrule appellant’s fifth issue.

Admission of Medical Records as Business Records

In his first issue, appellant complains that the trial court erred in admitting into

evidence, under the business records exception to the hearsay rule, the CAC’s records

regarding Dr. Girardet’s examination of J.C. We review a trial court’s ruling on the

admissibility of evidence under an abuse of discretion standard, in light of the

evidence before the trial court at the time the ruling was made, and must uphold the

trial court’s ruling if it was within the zone of reasonable disagreement. Weatherred

v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Ellis v. State , 99 S.W.3d 783,

787 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

At trial, appellant objected to the introduction of the business records on the

basis that Dr. Girardet was not the custodian of records for the CAC. Appellant’s trial

counsel stated to the trial court, “My understanding is that [the business record] has

to be brought by a person who maintains, who has custody of the record. I could be

wrong, Judge.”

The predicate for the business records exception to the hearsay rule may be

established either by the custodian of records or another qualified witness. Tex. R.

Evid. 803(6); Lee v. State , 779 S.W.2d 913 , 917–18 (Tex. App.—Houston [1st Dist.]

1989, pet. ref’d). Appellant argues for the first time on appeal that the business

records should not have been admitted because Dr. Girardet was not “another qualified

witness” under Rule 803(6) and, alternatively, that there was no testimony that the

CAC kept such records as a regular practice. These claims were not preserved for our

review. To preserve error for appellate review, a defendant must make a specific

objection in the trial court. Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App.

2002); Tex. R. App. P. 33.1(a)(1)(A). The point of error on appeal must comport with

the specific objection made at trial. Wilson , 71 S.W.3d at 349 . An objection stating

one legal basis may not be used to support a different legal theory on appeal. Rezac

v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

We overrule appellant’s first issue.

Admission of Testimony Regarding the “Outcry” Statement

In his second issue, appellant complains that the trial court should not have

allowed Urban to testify about the outcry statement J.C. made during their interview

at the CAC. Appellant complains that Urban was not the first person J.C. told she was

sexually abused, and that the statement made to Urban was not reliable based on the

time, content, and circumstances under which it was made.

1. First person requirement under article 38.072

A child-abuse victim’s statement to another is not inadmissible hearsay if the

statement describes the alleged offense and the person to whom the statement is made

is at least 18 years old and is the first person to who the child made a statement about

the offense. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004-2005). A

court’s decision that the outcry statement is reliable and admissible under article

38.072 is reviewed for an abuse of discretion. Broderick v. State , 89 S.W.3d 696, 698

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) .

At a hearing outside the jury’s presence, appellant argued that only the first

person to whom a sexually abused child made a statement qualified as the outcry

witness. Appellant argued that, because J.C.’s mother was the first person to whom

J.C. made a statement about the offense, only she could testify as to any outcry

statement under article 38.072.

The Court of Criminal Appeals in Garcia v. State held that, at least where the

child makes only a “general allusion” of sexual abuse to the first person, but gives a

more detailed account to a second person, the second person may be the proper outcry

witness. 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). In Garcia , the Court interpreted

the “first person” and “statement about the offense” language in article 38.072 to mean

that the outcry witness must be the first person, 18 years old or older, to whom the

child made a statement that in some discernible manner described the alleged offense.

Id . Despite the fact that the child first told her teacher about her step-father’s abuse,

the Court held that the trial court properly designated another person as the outcry

witness because that person was the “first person” to whom the child actually

described the offense in a discernable manner. Id . at 91–92; accord Hayden v. State ,

928 S.W.2d 229, 231 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that

child protection service worker was proper outcry witness because there was no

evidence that school counselor to whom child first made outcry statement was given

any details of alleged offense); Anderson v. State , 831 S.W.2d 50, 54 (Tex.

App.—Fort Worth 1992, pet. ref’d) (holding that mother was not proper outcry

witness, despite being first person child told of father’s abuse, because mother refused

to admit statement was made to her, refused to cooperate with authorities, and had

been convicted of related offense). The Court in Garcia stated the following:

In picking the particular wording of the “first person” requirement,

the legislature was obviously striking a balance between the general

prohibition against hearsay and the specific societal desire to curb the

sexual abuse of children . . . [and] . . . the societal interest in curbing

child abuse would hardly be served if all that “first person” had to

testify to was a general allegation from the child that something in the

area of child abuse was going on at home .

. . .

In order to be designated as the outcry witness by the trial court, one

element that must be clearly shown by the evidence is that the victim

described the offense to that witness.

. . .

We emphasize that from this record we cannot determine what it was

that complainant told her teacher.

792 S.W.2d at 91 .

A review of the record in this case yields no evidence that J.C. told her mother

the details of the charged offenses. Further, the State informed the trial court at the

article 38.072 hearing that J.C.’s mother was under indictment for failing to report

appellant’s abuse of J.C., was unavailable to talk to the prosecutor, refused to

cooperate with the police, and refused to admit that J.C. made an outcry statement to

her. Appellant did not dispute the State’s assertions. See Pitts v. State , 916 S.W.2d

507, 510 (Tex. Crim. App. 1997) (“This Court accepts as true factual assertions made

by counsel which are not disputed by opposing counsel.”). Urban was the first adult

to whom an outcry statement was made who could remember J.C.’s statement and

relate it at trial. See Foreman v. State , 995 S.W.2d 854 , 858–59 (Tex. App.—Austin

1999, pet. ref’d) (holding that article 38.072 allows “the first adult who can remember

and relate at trial the child’s statement” to be the outcry witness) (emphasis added).

2. Reliability of the outcry statement made to Urban

Appellant also argues that the trial court erred in admitting Urban as the outcry

witness because the outcry statement was unreliable. As a prerequisite to admitting

testimony about the outcry statement, the trial court is required to find that the

statement is reliable based on “the time, content, and circumstances of the statement.”

Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b)(2) (Vernon Supp. 2004-2005). The

phrase “time, content, and circumstances” refers to the time the child makes the

statement to the proffered outcry witness, the content of the statement, and the

circumstances surrounding the making of the statement. Broderick v. State , 89 S.W.3d

696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

Appellant specifically complains that the State’s evidence showed the outcry

statement J.C. made to Urban was merely a “general allusion to sexual abuse” and that

“Urban was not familiar with any circumstances surrounding the case, or aware of any

evidence corroborating the complainant’s statement.” Appellant’s complaints are

without merit. The outcry statement J.C. made to Urban was not merely a general

allusion. It was detailed and in a “discernable manner describes the alleged offense.”

See Garcia , 792 S.W.2d at 91 . The test for reliability looks to the circumstances

surrounding the making of the statement and not the circumstances of the abuse as

appellant implies. See Broderick , 89 S.W.3d at 699 .

The evidence in the record supports the trial court’s finding that the statement

was reliable based on the time J.C.’s statement was made, the content of her statement,

and the circumstances surrounding her making the statement. J.C. made the statement

to Urban after her mother instructed her not to tell anyone other than her brother.

Urban testified that J.C. stated that she knew the difference between a lie and the truth

and promised to tell Urban the truth. J.C. described the assaults to Urban in detail and

in her own words, using immature language. Urban’s testimony about the outcry

statement was consistent with J.C.’s testimony at trial and Urban stated that she asked

J.C. open-ended, not leading, questions.

We hold that the trial court did not err in allowing Urban to testify as the outcry

witness. We overrule appellant’s second issue.

CONCLUSION

We affirm the judgment of the trial court in cause number 950073 . We reverse

the judgment of the trial court in cause number 954561 and remand the cause to the

trial court for further proceedings consistent with this opinion.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

The motion for en banc reconsideration is denied as moot.

Publish. Tex. R. App. P. 47.2(b).