Felix Lindsey Allen II v. State

Opinion issued December 11, 2018

In The

Court of Appeals

For The

First District of Texas

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NO. 01-17-00596-CR

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FELIX LINDSEY ALLEN II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 16CR0292

MEMORANDUM OPINION

Following his jury trial and conviction for indecency with a child, appellant

Felix Lindsey Allen, II, argues that the trial court gave the State an unfair

advantage when it refused to order the disclosure of prospective jurors’ criminal

histories. Allen also challenges the sufficiency of the evidence to support his

conviction. And he argues last that the trial court abused its discretion by denying

his motion for a mistrial. Because we conclude that Allen failed to preserve his

challenge regarding the prospective jurors’ criminal histories, the evidence was

legally sufficient, and the trial court did not abuse its discretion by denying his

request for a mistrial, we affirm.

Background

The State charged Allen with two counts of indecency with a child based on

two allegations of sexual contact with his girlfriend’s granddaughter, L.J. At the

time of the alleged incidents, L.J. was under ten years old. The first allegation

reportedly occurred in October 2015 during a gathering at the grandmother’s

house. Allen was sitting on the porch intoxicated when L.J.’s mother allegedly saw

him holding L.J. and reaching for her vagina with his index finger and thumb.

Allen claimed that this allegation was a lie. According to Allen, L.J. would

repeatedly tell him, “If you touch me, I’m going to tell my mama you tried to touch

my privates.” The jury found Allen not guilty of indecency with a child based on

this allegation.

The second allegation reportedly occurred in January 2016 and also took

place at the grandmother’s house. While L.J., her little brother, and a number of

other children were playing outside after school, Allen allegedly picked up L.J.,

brought her inside, threw her on the couch, and touched her vagina with his hand.

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According to one of the children who was there, L.J.’s little brother unsuccessfully

tried to stop Allen by yelling at him and telling him to put her down. The little

brother claimed to have witnessed Allen touch L.J.’s “middle part.” L.J. later said

that Allen touched her vagina and stuck his tongue in her mouth during the

incident. The jury found Allen guilty of indecency with a child based on this

allegation.

Allen appeals.

Analysis

Allen raises three issues on appeal. He argues that during the jury-selection

process, the trial court erred by refusing to order the State to disclose prospective

jurors’ criminal histories. Allen also argues that the evidence was legally

insufficient to support his conviction for indecency with a child. Last, he argues

that the trial court abused its discretion by denying his request for a mistrial

following the grandmother’s testimony that she believed L.J.

I. Prospective jurors’ criminal histories

Allen argues that the trial court committed reversible error by not ordering

the State to turn over information regarding the criminal histories of prospective

jurors. He maintains that the trial court’s refusal gave the State an “unfair

advantage” and deprived him of due process and his rights under the Sixth

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Amendment. The State argues that Allen failed to preserve the issue for appeal. We

agree with the State.

An issue is preserved for appeal if the complaining party made a timely trial

objection that specifically stated the grounds for the objection. See Douds v. State,

472 S.W.3d 670, 674 (Tex. Crim. App. 2015). “The objection must merely be

sufficiently clear to provide the trial judge and opposing counsel an opportunity to

address and, if necessary, correct the purported error.” Ford v. State, 305 S.W.3d

530, 533 (Tex. Crim. App. 2009). If an appellate argument does not comport with a

trial objection, error has not been preserved. Goff v. State, 931 S.W.2d 537, 551

(Tex. Crim. App. 1996).

Allen’s objection in the trial court concerning the State’s access to the

prospective jurors’ criminal histories does not comport with his constitutional

argument on appeal. Allen’s attorney argued to the trial court that if the State has

access to the prospective jurors’ criminal histories “and they’re using it,” it is “only

fair that they provide it to the Defense.” When the prosecutor responded that the

State was not permitted to share the information under article 39.14 of the Code of

Criminal Procedure, Allen’s attorney responded, “That’s not true. I got it in a

capital murder case in the 212th from Bill Reed in my last trial. So, I don’t know

why they’re saying it’s not permitted. I just received it.” Allen never mentioned a

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due-process violation or a violation of his Sixth Amendment rights in the trial

court. He has therefore failed to preserve his first issue for appeal; accordingly, we

overrule it.

II. Sufficiency of the evidence

Allen argues that the evidence presented at trial was legally insufficient to

prove indecency with a child by sexual contact. This court reviews the legal

sufficiency of evidence by viewing all evidence in light most favorable to the

verdict and asking whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Ross v. State, 543 S.W.3d 227,

234 (Tex. Crim. App. 2018). Allen was charged with indecency with a child under

Penal Code Section 21.11(a)(1). A person commits that crime by engaging in

sexual contact with a child younger than seventeen years of age. TEX. PENAL CODE

§ 21.11(a)(1).

Allen contends that the evidence was legally insufficient because “the

alleged contact did not involve the removal of clothes” and because L.J.’s brother,

a witness who testified to seeing Allen touch L.J., “would not have been able to

see” his hands touch L.J. from his vantage point. Both arguments are unavailing.

The statutory definition of “sexual contact” explicitly contemplates “touching

through clothing.” Id. § 21.11(c)(1). We therefore reject Allen’s argument that the

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evidence was legally insufficient because the allegations did not involve his

removing L.J.’s clothes. Whether L.J.’s brother could have seen Allen’s hands

touch L.J. from where he was standing was a disputed fact. Both sides presented

evidence on the topic. The jury was free to believe all or part of the evidence, and

on a legal sufficiency review, we presume the jury resolved all fact issues in favor

of the verdict—including whether the witness was able to see Allen sexually

contact L.J. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018).

Accordingly, we reject Allen’s last argument for why the evidence was legally

insufficient.

In light of L.J.’s testimony concerning Allen touching her vagina, which was

corroborated by her brother’s testimony, we conclude that a rational factfinder

could find Allen guilty of the charged offense. We therefore overrule Allen’s

challenge to the sufficiency of the evidence.

III. Motion for mistrial

Finally, Allen argues that the trial court improperly denied his motion for

mistrial. In answering the prosecutor’s question regarding her encounter with Allen

after learning of the alleged abuse, the grandmother stated, “I just asked him did

he do it? He say, no, he didn’t do it. So, I believe my granddaughter before I

believe . . . .” The grandmother was cut off by Allen’s objection that this testimony

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improperly bolstered the complainant’s credibility. The trial court sustained the

objection and instructed the jury to disregard the grandmother’s statement. Allen

then moved for a mistrial. After a brief discussion with the parties at the bench, the

trial court denied Allen’s request.

This court reviews a trial court’s determination of whether an error warrants

a mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004). A mistrial is appropriate when an error generates harm or unfair

prejudice that is otherwise incurable. Young v. State, 137 S.W.3d 65, 69 (Tex.

Crim. App. 2004). In determining whether a trial court abused its discretion, this

court balances the severity of the error or magnitude of the prejudicial effect, the

measures adopted to cure the misconduct, and the certainty of conviction absent

the error. See Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). A trial

court’s prompt curative instruction is usually enough to eliminate prejudice and

avoid the need for a mistrial. Gonzalez v. State, 455 S.W.3d 198, 206 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d).

Allen contends that a mistrial was necessary because the grandmother

testified that she would believe her granddaughter before she would believe him

and thereby unfairly prejudiced the jury against him. Direct opinion testimony as to

the truthfulness of another witness is generally inadmissible because the testimony

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attempts to supplant the factfinding function. Yount v. State, 872 S.W.2d 706, 709–

10, 712 (Tex. Crim. App. 1993). It is for the jury alone to decide whether an

individual is credible. Zuniga, 551 S.W.3d at 733. Without explanation, Allen

contends that the jury assigned great weight to the grandmother’s opinion and was

unable to ignore the evidence. We disagree.

The trial judge reasonably could have concluded that the level of unfair

prejudice was minimal. The grandmother made the statement only by going

beyond the scope of the question asked by the prosecutor. She was unable to finish

her statement before Allen objected to the testimony and the trial court instructed

the jury to disregard the statement. See Archie v. State, 221 S.W.3d 695, 700 (Tex.

Crim. App. 2007) (noting that prejudicial conduct was “brief” and swiftly followed

by curative instruction in affirming trial court’s refusal to grant mistrial). The State

did not mention the grandmother’s response in its closing argument. Beyond this

one instance, the grandmother’s stated opinion was never discussed again.

The facts alleged in this case were that Allen touched L.J.’s vagina. L.J.’s

testimony supported that allegation and was corroborated by her little brother’s

testimony. Under these circumstances, the trial court reasonably could have

concluded that its instruction minimized the risk of unfair prejudice, and we

conclude, based on the record, that it is unlikely the jury would have reached a

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different result had the grandmother not testified that she believed her

granddaughter. See Archie, 340 S.W.3d at 742. Accordingly, we overrule Allen’s

challenge to the trial court’s refusal to grant a mistrial.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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