Charles Laneil Brown v. State

Opinion issued May 24, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00462-CR

———————————

Charles Leneil Brown , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 339th Judicial District Court

Harris County, Texas

Trial Court Case No. 1178042

MEMORANDUM OPINION

Appellant

Charles Leneil Brown pleaded not guilty to the first degree offense of

aggravated sexual assault. See Tex.

Penal Code § 22.021 (West Supp. 2011). The jury found him guilty and the court assessed his

punishment at fifty years in prison. On

appeal, Brown argues that the trial court erred in admitting evidence of two

extraneous offenses and in failing to give the jury proper limiting

instructions regarding the extraneous offense evidence. Brown also argues that he was harmed by an

improper argument the State made to the bench during the punishment phase of

trial. We affirm.

Background

During his opening statement, Brown’s attorney denied that Brown

forced complainant G.J. to engage in sexual acts with Brown. Brown’s attorney asserted that G.J. and Brown

had consensual sex, and it was only after Brown stole money from G.J. that she

decided to claim the encounter was a sexual assault.

G.J. testified that on December 18,

2007, Brown approached her in a food mart near her home. According to G.J., Brown asked her for

directions to a strip club and then asked her if she would “do it” for

$600.00. G.J. testified that she told Brown

that she was not a prostitute. After

Brown left the store G.J. purchased her items and began to walk home. According to G.J., Brown approached her in a car,

pulled out a gun, and directed G.J. to get in the car. G.J. testified that although she refused at

first, she complied because Brown had a gun in his hand and forced her. Brown parked the car near a Valero station and

told G.J. to place his penis in her mouth. According to G.J., Brown then pulled her from

the front seat into the back seat. Brown

forced G.J. to have vaginal intercourse before driving her to the front of her

neighborhood and letting her out of the car. Brown gave her a paper bag containing

newspaper and told her he did not give her real money because “she made things

hard.” G.J. threw the bag on the ground

and ran to her house.

On cross examination, Brown’s

attorney questioned G.J. about the torn clothing the State had entered into

evidence. In response to Brown’s

attorney’s questioning about why her pants were not ripped, G.J. explained that

Brown had removed her pants and only ripped her underwear. G.J. testified that she still had the same

amount of money when she left the car as when she got in, i.e., that Brown had

not stolen money from her.

After G.J. testified, the State argued

that because Brown had raised the defense of consent in his opening statement

and cross examination of G.J., it should be permitted to present evidence of

two extraneous offenses. Brown’s counsel

asked the court to instead give limiting instructions on his opening statement,

and he argued that the proffered extraneous offense evidence was inadmissible

under the “balancing test.” The trial

court found that the extraneous offenses were relevant to a contested issue and

therefore admissible.

The State offered evidence of two

extraneous sexual assault offenses. In

the first, S.V. testified that on December 23, 2005 she was approached by Brown

as she left a liquor store. Brown asked

for directions to a strip club before telling her that he had a gun and

instructing her to get in his car. Once

S.V. was inside Brown’s car, she agreed to put his penis in her mouth because

she was afraid of Brown. After Brown let

her leave, she discovered that she did not have the money that she had with her

when she got into his car. S.V. denied

that she was a prostitute at the time she met Brown but admitted that she was

later convicted of prostitution while working at an adult dance club.

Regarding the second extraneous

offense, E.B. testified that on August 23, 2005 she was approached by Brown in

a car while waiting at a bus stop. Brown

asked for directions before showing her a gun and telling her to get in the car. According to E.B., Brown drove them to a

motel against her will, rented a room, and forced her to have sex while he held

a gun in his hand. She testified that he

made her shower before leaving her in the motel. During cross examination, E.B. denied that

she had sex with Brown with the expectation of being paid or that Brown had

given her money.

Brown

testified. According to him, after

leaving the food mart, he offered G.J. $600.00 and she agreed to have oral and

vaginal sex with him. According to

Brown, although he had agreed to pay her $600.00, he switched the brown bag

containing money, including her $65.00, with one that contained newspaper. Brown also admitted that he had initially

denied that he had sex with G.J. when the police arrested him for sexual

assault of G.J.

Brown testified that he also had

consensual sex with E.B. and S.V. and that his encounters with all three women

were part of a scheme to get money. According to Brown he had agreed to pay the

women for sex but when the women were not paying attention he switched the bags

of money he had initially shown them for bags containing newspaper folded up so

as to appear to be money. Brown

testified that while driving around looking for a prostitute he stopped to ask E.B.

where he could find one. Brown stated

that E.B. offered to have sex with him in exchange for money and the two had

sex in a motel. According to Brown, E.B.

was now angry that he left her in a motel and switched a bag of money for a bag

of newspaper. Brown also testified he

approached S.V. to ask her if she knew the location of a strip club. According to Brown, S.V. told him that she

was having problems with her husband and agreed to have oral sex for money. He stated that he had S.V. put her money in a

bag with the money he was going to use to pay her and he switched it for a bag

of newspaper.

The

jury found Brown guilty of aggravated sexual assault and the trial court

sentenced him to fifty years in prison.

Admissibility of

Extraneous Offenses

In his first point of error, Brown

argues that the trial court erred in admitting evidence that Brown sexually

assaulted S.V. and E.B. Brown contends

that the evidence of the two prior extraneous offenses was inadmissible under

Rule of Evidence 404(b) and that the probative value of the two extraneous

offenses did not substantially outweigh the danger of unfair prejudice under

Rule 403.

The State argues, as it did at trial,

that the extraneous offenses were admissible under 404(b) to show intent in

response to Brown’s defensive theory that G.J. consented. The State also contends the evidence was not

substantially more prejudicial than probative.

A.

Standard of review

We review a trial court’s decision to

admit evidence under Rules 404(b) and 403for an abuse of discretion. See

Shuffield v. State , 189 S.W.3d 782,

793 (Tex. Crim. App. 2006); Wolfberg v.

State , 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). A trial court abuses its discretion only if

its decision is “so clearly wrong as to lie outside the zone within which

reasonable people might disagree.” Taylor v. State , 268 S.W.3d 571, 579

(Tex. Crim. App. 2008). If the trial

court’s decision is correct on any theory of law applicable to the case, we

will uphold the decision. De La Paz v. State , 279 S.W.3d 336, 344

(Tex. Crim. App. 2009). “When a trial

court further decides not to exclude the evidence, finding that the probative

value of the evidence is not outweighed by the danger of unfair prejudice, this

decision too shall be given deference.” Moses v. State , 105 S.W.3d 622, 627

(Tex. Crim. App. 2003).

B.

Applicable law

To prove Brown committed aggravated

sexual assault against G.J., the State had to prove beyond a reasonable doubt

that while exhibiting a deadly weapon Brown intentionally or knowingly caused the penetration of G.J.’s sexual

organ without her consent or caused penetration of her mouth with his sexual

organ without her consent. Tex. Penal Code Ann. § 22.021 ; see

Brown v. State , 96 S.W. 3d 508, 512

(Tex. Crim. App. 2002). When the defensive

theory of consent is raised the defendant necessarily disputes his intent to

engage in the alleged conduct without the complainant’s consent and places his

intent to commit sexual assault at issue.

Casey v. State , 215 S.W.3d

870, 880 (Tex. Crim. App. 2007) (citing Rubio

v. State , 607 S.W.2d 498, 501 (Tex. Crim. App. 1980)).

C.

Rule 404(b)

First, Brown argues that the evidence

of the two extraneous offenses was inadmissible under rule 404(b) because they

were not similar enough to the assault involving G.J. to be probative of the

issue of identity. The State contends

that because it was required to show that Brown engaged in sexual conduct with

G.J. without her consent , the

extraneous offenses were necessary to rebut Brown’s consent theory. The issue of consent was hotly contested and

the extraneous offense evidence was admitted only after Brown’s attorney asserted

that G.J. had consented to having sex with Brown in both his opening argument and

on cross-examination of G.J. See Bass v. State , 270 S.W.3d 557, 563

(Tex. Crim. App. 2008) (recognizing that defense opening statement opens door

to admission of extraneous-offense evidence to rebut defensive theory raised in

the statement).

Rule 404(b) provides that “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.” Tex.

R. Evid. 404(b); see Martin v.

State , 173 S.W.3d 463, 466 (Tex. Crim. App. 2005) (quoting same). But, Rule 404(b) further provides that

extraneous-offense evidence may “be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident[.]” Tex. R. Evid. 404(b); see Martin , 173 S.W.3d at 466 . Moreover this list is illustrative, rather

than exhaustive, and the Court of Criminal Appeals has concluded that this

language may allow the admission of an extraneous offense when a defendant

raises a defensive issue that negates one of the elements of the offense. Martin ,

173 S.W.3d at 468 (similar extraneous sexual offense involving defendant was

admissible to show complainant did not consent to sexual activity). “Thus a party may introduce evidence of other

crimes, wrongs, or acts if such evidence logically serves to make more or less

probable an elemental fact, an evidentiary fact that inferentially leads to an

elemental fact, or defensive evidence that undermines an elemental fact.” Id. (citing

Montgomery v. State , 810 S.W.2d 372,

387 (Tex. Crim. App. 1991) (opinion on rehearing)).

Brown argues that the extraneous offenses

should not have been admitted because they are not similar enough to be

probative of identity. But as the State points

out, it did not offer them to prove identity, because Brown admitted having sex

with G.J. The Court of Criminal Appeals

has held that less similarity is needed to establish admissibility of an

extraneous offense when it is offered to establish intent rather than identity. Plante

v. State , 692 S.W.2d 487 , 492–93 (Tex. Crim. App. 1985); see also Dennis v. State , 178 S.W.3d

172, 179 (Tex. App. —Houston [1st Dist] 2005, pet ref’d.) (similarity

required to admit extraneous offense evidence to rebut appellant’s frame-up

defense is less than that required when extraneous evidence is used to show

defendant’s system). Here, E.B., S.V., and G.J. all testified that

when Brown initially approached them, he asked for directions. S.V. and G.J. testified that Brown

specifically asked for directions to a strip club. All three women testified that a short time after

asking for directions, Brown pulled out a gun or told them that he had a gun in

order to get them into his vehicle. G.J.

and S.V. both testified that Brown forced them to perform sexual acts in his

car and they were permitted to leave after they complied with Brown’s

demands. Although Brown took E.B. to a

hotel, E.B., like G.J., testified that Brown continued to hold the gun during

the assault. Although the details of the

sexual acts Brown demanded differed in some respects, Brown began each assault

by asking for directions and then forcing the women into his car by making threats

involving a gun. The trial court did not

abuse its discretion in admitting the extraneous offense evidence because the

testimony that Brown sexually assaulted E.B. and S.V. while holding a gun or

threatening to use a gun was probative of an element of the charged offense

insofar as it tended to show that G.J. did not consent to the sexual acts with

Brown. See Martin , 173 S.W.3d at 468 (offenses sufficiently similar for

extraneous offense evidence to be admissible to rebut consent defense in sexual

assault case where appellant, in two separate instances, falsely claimed to be law

enforcement officer as part of ruse to gain trust of complainant and extraneous

offense witness, and then sexually assaulted each of them); see Brown , 96 S.W.3d at 513 (offenses sufficiently similar for

extraneous offense evidence to be admissible for purpose of proving appellant’s

intent where in three instances, appellant picked up a woman, took her to a

remote area, and left her stranded with little clothing).

D.

Rule 403

Brown also argues that even if the extraneous

offense evidence was admissible under Rule 404(b), the evidence was

nevertheless inadmissible under Rule 403.

Under Rule 403, relevant evidence may

be excluded “if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury . . .

.” Tex.

R. Evid. 403; see Martin, 173

S.W.3d at 466 (quoting same). In

determining whether the probative value of evidence is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, or needless presentation of

cumulative evidence courts should balance the following factors: (1) the

inherent probative force of the proffered evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest

decision on an improper basis, (4) any tendency of the evidence to confuse or

distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate its

probative force, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already

admitted. Gigliobianco v. State , 210 S.W.3d 637 , 641 – 42 (Tex. Crim. App. 2006).

Under the first two factors we examine

the probative value of the evidence. The

term “probative value” refers to “the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the

proponent's need for that item of evidence.” Id. at

641 . Under our 404(b) analysis we

determined that the extraneous offense evidence is probative of an element of

the charged offense, the absence of consent.

And the State’s need for the extraneous offense evidence was considerable. Because Brown did not deny that he had sex

with G.J., the issue of intent was central to the State’s case. The Court of Criminal Appeals has stated that

this intent cannot be inferred from the mere fact of intercourse with the

complainant. Rubio , 607 S.W.2d at 501 .

Because the only physical evidence of force was G.J.’s torn clothing,

the State’s need for the extraneous evidence to respond to Brown’s consent

defense was high. See Wheeler v. State , 67

S.W.3d 879, 888 (Tex. Crim. App. 2002) (in prosecutions for sexual offenses, successful

conviction often depends on whether jury believes complainant, therefore developing

into “swearing match” between complainant and defendant).

Under the third factor, we note that

there is a tendency of evidence to suggest decision on an improper basis when

the subject matter is that of a sexual crime because of the inherently inflammatory

and prejudicial nature of sex crimes. Wheeler , 67 S.W.3d at 889 (evidence of

extraneous sexual offense will always carry emotional weight and danger of

impressing the jury in irrational, indelible way but prejudicial nature must

substantially outweigh probative value).

In this case, S.V. and E.B.’s testimony posed a risk of prejudicing the

jury. Likewise, with respect to the

fourth factor, there did exist a possibility that the jury would focus on the

two extraneous offenses instead of focusing on the charged offense.

Under the

fifth factor, we weigh any tendency of the evidence to be given undue weight by

a jury that has not been properly equipped to evaluate the probative force of

the evidence. Here, the jury charge

expressly instructed the jury to consider the extraneous offense evidence only

in determining the issues enumerated in Rule 404(b). See

Blackwell v. State , 193 S.W.3d 1 , 6 – 17 (Tex. App. —Houston

[1st Dist.] 2006, pet. ref’d.) (approving jury instruction limiting jury’s reliance on extraneous

offense evidence to issues enumerated in 404(b)). Similarly, following S.V.’s testimony the

jury heard verbal instructions that it “may only consider the same in

determining the motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident of the defendant, if any, in

connection with the offense, if any, alleged against him in the indictment and

for no other purpose.” Because the jury

was provided with these express written and oral instructions limiting its

consideration of the extraneous offense evidence, we conclude that the jury was

properly equipped to evaluate the probative force of the evidence. See id. at

17 . Finally, under the sixth factor we consider

the time required to develop the evidence.

Here, approximately one fifth of the testimony during the guilt and

innocence phase of the trial involved the presentation of the extraneous

offense evidence.

Balancing

all of the factors, we conclude that the trial court did not abuse its discretion

in determining the extraneous offense evidence was not substantially more

prejudicial than probative under Rule 403.

Dennis , 178 S.W.3d at 181 (trial

court’s decision to admit evidence of extraneous sexual assault of girl of

similar age of complainant, occurring in same month and in same apartment was

not outside of the zone of reasonable disagreement when evidence was highly probative

of defensive theory of fabrication); see

also Blackwell , 193 S.W.3d at 18 (extraneous offense evidence intended to

rebut defensive theories of absence of intent to commit sexual offense

admissible under Rules 403 and 404(b)).

We overrule Brown’s first issue.

Jury Charge

In his second issue, Brown contends

that the charge erroneously failed to expressly instruct the jury to limit its consideration

of the extraneous offense evidence to only the issue of whether Brown committed

the charged offense without G.J.’s consent. In other words, he contends it was error to

permit the jury to consider it for any of the purposes enumerated in Rule

404(b). Brown contends this was harmful

error that requires reversal.

A.

Applicable Law

In analyzing a jury charge we first

decide whether error exists and if we find error, we analyze that error for

harm. Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)

(citing Hutch v. State , 922 S.W.2d

166, 171 (Tex. Crim. App. 1996). Under Almanza , charge error requires reversal

when the defendant has properly objected to the charge and we find “some harm”

to his rights. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When the defendant fails to object or states

that he has no objection to the charge, we will not reverse for charge error

unless the record shows “egregious harm” to the defendant. Id. Thus, we review alleged charge error by

considering two questions: (1) whether error existed in the charge; and (2)

whether sufficient harm resulted to compel reversal. See Middleton ,

125 S.W.3d 453 . We turn first to the

question of error.

B.

Analysis

Brown’s sole objection to the charge

related to the trial court’s ruling on a lesser included offense instruction,

which Brown has not challenged on appeal.

Brown did not object to the limiting instruction relevant to the

extraneous offense evidence. The relevant

portion of the charge stated:

You are further instructed that if there is any evidence

before you in this case regarding the defendant’s committing an alleged offense

or offenses other than the offense alleged against him in the indictment in

this case, you cannot consider such evidence for any purpose unless you find

and believe beyond a reasonable doubt that the defendant committed such other

offense or offenses, if any, and even then you may only consider the same in

determining the motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident of the defendant, if any, in

connection with the offense, if any, alleged against him in the indictment and

for no other purpose.

Brown argues that the jury charge

here is similar to the charge the Court of Criminal Appeals held improper in Owens v. State . Owens

v. State , 827 S.W.2d 911 , 916 – 917 (Tex. Crim. App. 1992). In Owens ,

the Court held that a charge instructing the jury it could consider extraneous

evidence for the limited purpose of “determining the system of the Defendant”

was improper because no evidence at trial showed that the extraneous offense

was the system or unusual handiwork of the defendant. Id. at 913, 917. Moreover, the charge did not expressly

instruct the jury that it could consider the evidence on the issue of frame-up,

which was the defensive theory that the State argued the extraneous evidence

was admissible to rebut. Id. at 917 . The Court held:

Absent

such additional instruction, there is no way for an appellate court to know

whether the jury properly applied the evidence of appellant’s “system” to rebut

the weight or credibility of appellant’s “frame-up” theory or relied on it for

an improper basis such as character conformity.

Id.

This case

differs from Owens . Unlike in Owens ,

the jury charge here instructed the jury to limit consideration of the

extraneous offense evidence to the issues enumerated under Rule 404(b) and the

State had raised evidence of Brown’s

intent to commit the sexual assault without consent to rebut Brown’s consent

theory. See Blackwell , 193 S.W.3d at 16 .

In Blackwell v. State , we were

presented with a jury charge with nearly identical language. We concluded that the charge properly limited

the jury’s reliance on extraneous offense evidence to rebut a frame-up defense

because the charge limited the jury’s consideration to the exceptions

enumerated under Rule 404(b). Although the

charge here, like the one in Blackwell ,

instructed the jury that it could consider the extraneous offense evidence for any

of the Rule 404(b) purposes rather than only the one in dispute, we concluded

in Blackwell , as we do here, that the

additional language was mere surplusage that the jury could have disregarded as

irrelevant. See id. While the jury

charge was not as narrowly tailored as it could have been, it properly

instructed the jury to consider the extraneous offense evidence for only the

purposes permitted by Rule 404(b), one of which Brown had disputed at trial. We therefore find no error in the

charge. See id. (when lack of intent or motive was defensive theory,

instructions that jury could consider extraneous offense evidence for no

purpose other than 404(b) exceptions enumerated in charge properly restricted

jury’s use of evidence).

We overrule Brown’s second issue.

Argument During

Punishment Phase

In his

third issue, Brown argues that the prosecutor made an improper argument to the

trial court. In its argument during the punishment

phase, the State said: “But who knows how many times this defendant has done

what he did in those three cases and just didn’t get caught. He picks the right victims, women who are

scared and maybe won’t come forward. And

so, who knows how many other victims are out there.” Brown contends that the State’s argument was

improper because it referred to evidence outside the record and caused the

trial court to impose a harsher punishment.

To

complain on appeal about an improper argument, a defendant must object at trial

and pursue his objection to an adverse ruling.

Cockrell v. State , 933 S.W.2d

73, 89 (Tex. Crim. App. 1996). A

defendant must object each time an improper argument is made, or he waives his

complaint, regardless of how egregious the argument. See

Valdez v. State , 2 S.W.3d 518 , 521–22 (Tex. App. — Houston [14th Dist.] 1999, pet. ref’d);

Wilson v. State , 179 S.W.3d 240, 249

(Tex.

App. — Texarkana

2005, no pet.). Brown concedes that he

did not object to the prosecutor’s argument at trial. We therefore conclude Brown failed to

preserve this issue for our review.

We overrule Brown’s third issue.

Conclusion

We affirm the judgment of

the trial court.

Rebeca

Huddle

Justice

Panel

consists of Justices Jennings, Massengale, and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).