Opinion
No. 05-17-00665-CR No. 05-17-00666-CR
06-26-2018
TABITHA CLEMENS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause Nos. F-1675149-X and F-1675738-X
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Lang-Miers
A jury found appellant Tabitha Clemens guilty of the offenses of aggravated sexual assault of a child and sexual performance by a child. TEX. PENAL CODE ANN. § 22.021 (West Supp. 2017); id. § 43.25 (West Supp. 2017). The trial court sentenced appellant to twenty-five years' imprisonment for each offense. In four issues, appellant contends the trial court erred in its rulings regarding jury voir dire, exclusion and admission of evidence, and the jury charge. We affirm the trial court's judgment.
BACKGROUND
Appellant and B.C. ("Father") met in high school and married in 2001 after appellant became pregnant with the first of their four children. D.C., the complainant in this case, is their second child and only daughter. She was approximately eight years old at the time of the events relevant to this appeal.
Appellant and Father had recurring problems in their marriage. In January 2013, appellant moved to Dallas with the children. Father remained behind at the family's home in Oklahoma. Appellant found a job and moved into an apartment with the children in February. The children were enrolled in school in Dallas for a short period, but then moved back to Oklahoma. The date of the children's return to Oklahoma was contested at trial. Appellant was evicted for nonpayment of rent in April. Toward the end of June, appellant moved back to Oklahoma to rejoin Father and the children.
In August 2013, the children were removed from their parents' custody and placed with Father's mother and stepfather, Amy and Tim Russell. A no-contact order was put in place to prohibit appellant and Father from having contact with the children. During this period, D.C. had difficulty sleeping, experienced frequent nightmares, and wet the bed on an almost nightly basis. In March 2015, D.C. and her brothers began to see clinical counselor Amanda Wiles to deal with the stress of the separation from their parents.
For clarity we refer to the Russells by their first names.
In July 2015, the no-contact order between the children and their parents was lifted. About that time, D.C. disclosed to Wiles that she had been sexually abused. Wiles referred the matter to Oklahoma's child protective services ("Oklahoma D.H.S.") and to Texas Child Protective Services ("C.P.S."). D.C. was interviewed shortly thereafter by forensic interviewer Lara Welch. D.C. told Welch about acts of abuse by appellant and three men who frequently visited their apartment in Dallas, including swinging naked in a sex swing while the men touched D.C.'s vagina, posing naked in front of a camera for appellant and the men, and performing oral sex on appellant.
The Dallas Police Department conducted an investigation. Although the men allegedly involved in the incidents were either not identified or not found, charges were filed against appellant for indecency with a child by contact, sexual performance by a child, and aggravated sexual assault of a child. The case proceeded to trial before a jury. The State offered the testimony of Welch, Amy, appellant's Dallas neighbor Heather Shackelford (who sold appellant the sex swing), sexual assault nurse examiner Sara Taylor, Wiles, D.C., D.C.'s older brother, and officer Breanna Valentine of the Dallas Police Department's child abuse unit.
The defense called Oklahoma D.H.S. supervisor Geri Hayes, Amanda Thomas (who moved in with appellant in Dallas for a short period), Father, Shackelford, Wiles, and psychotherapist Maria Mollett, as an expert witness. Appellant also testified in her own defense. Appellant sought to establish that (1) there was no time or place in Dallas for the incidents to have occurred; and (2) Amy coached D.C. into her outcry.
The jury acquitted appellant on the charge of indecency with a child by contact, but found appellant guilty of the offenses of aggravated sexual assault of a child and sexual performance of a child. During the punishment phase tried to the court, Amy, Father, and Molett testified. Two additional witnesses, appellant's former employer Richard Wilhite and step-grandmother Pam Rogers, also testified. The trial court sentenced appellant to 25 years' imprisonment for each offense. This appeal followed.
DISCUSSION
Appellant contends the trial court erred by (1) sustaining the State's objection to a proper question the defense asked during voir dire; (2) excluding Father's testimony about his upbringing, his mother's manipulative nature, how she abused Father and his siblings, and how she was doing the same thing to D.C.; (3) allowing the State to cross-examine appellant about "bumping" (her alleged use of methamphetamine); and (4) instructing the jury so that appellant's right to a unanimous jury verdict was violated, causing appellant egregious harm.
1. Voir Dire
In her first issue, appellant contends that the trial court erred by sustaining the State's objection to a question asked by defense counsel during voir dire: "Say you were charged. With sexual molestation. Would you want to defend yourself?" The trial court sustained the State's objection to the question as "placing the juror in the place of the defendant." Appellant argues that the question was proper and the error prevented her intelligent exercise of her peremptory challenges. She argues that under those circumstances, the trial court's ruling was an abuse of discretion that was not subject to a harm analysis, citing Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). In Nunfio, the court held that "the error in denial of a proper question automatically establishes harm. If the disallowed question was proper, harm is presumed because a defendant has been denied the intelligent use of his peremptory strikes." Id. (citations omitted). As appellant recognizes, however, the Court of Criminal Appeals overruled Nunfio in Barajas v. State, 93 S.W.3d 36, 40 (Tex. Crim. App. 2002), explaining that trial courts are within their discretion to prevent voir dire questions that "constitute global fishing expeditions." Id. at 41-42.
During jury voir dire, both the trial court and defense counsel discussed appellant's right not to testify. The trial court admonished the jury, "[t]he law requires that no juror would hold it against an accused should they choose not to testify." The trial court continued, "[s]hould a juror hold it against somebody that doesn't testify what you are doing is probably moving the job of who's got to prove guilt or innocence. Nobody has to prove innocence. State has to prove guilt."
Defense counsel subsequently asked the panel, "Anybody heard of the Fifth Amendment right not to testify?" He secured the jury's agreement that "under the U.S. Constitution . . . you do not have to take that witness stand to testify." A venireperson then asked, "why would someone in that case involving a child . . . want the child's testimony to be the only testimony heard in court?" Defense counsel then discussed with the panel possible reasons a defendant might choose not to testify. Defense counsel concluded, "[t]he point I'm making is that it would be your decision . . . to either testify or not testify. I'm trying to convey is if the person didn't testify there may be various reasons why they don't testify." He obtained the panel's agreement that his statement was fair, and then stated, "Okay. I think we've kind of gone over the Fifth Amendment right pretty well." The question at issue arose later in the voir dire. After the objection was sustained, appellant's counsel again stated, "I think we belabored that issue. I think we have sufficient good dialog there," and moved to another subject.
The record reflects that the venireperson to whom the question was directed was not selected for the jury. Subsequently, appellant waived her Fifth Amendment right and testified during the guilt/innocence phase of the trial.
Assuming the trial court's ruling was error, we conclude that we may review it for harm. Eight years after Nunfio, the court of criminal appeals held that a trial court's erroneous exclusion of a proper question during jury voir dire was subject to a harmless error analysis. Gonzales v. State, 994 S.W.3d 170, 171 (Tex. Crim. App. 1999) ("Resolution of this point can no longer be determined by resorting to Nunfio . . . ."). Citing its decision in Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), the court explained that except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," no error is categorically immune to a harmless error analysis. Gonzalez, 994 S.W.2d at 171; see Johnson v. State, 169 S.W.3d 223, 236-239 (Tex. Crim. App. 2005) (Fifth Amendment's guarantee against compelled testimony has "historically been subjected to harm analyses" rather than held to be "structural error"); see also Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (considering standard of harm to apply to constitutional error).
Under rule of appellate procedure 44.2(a), for a "constitutional error that is subject to a harmless error review," we must reverse a judgment of conviction "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction." TEX. R. APP. P. 44.2(a). Under rule 44.2(b), any other error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b). Assuming without deciding that the trial court's ruling was constitutional error, we conclude beyond a reasonable doubt that the error did not contribute to appellant's conviction. First, the question was directed to appellant's right not to testify, and whether jurors might hold appellant's failure to testify against her. But appellant did testify, and jurors could not have held her failure to testify against her. Second, appellant's counsel and the venire discussed at some length appellant's right not to testify, and the trial court gave instructions on the subject as well. Appellant's counsel obtained the venire's agreement that there were "various reasons why" a defendant might choose not to testify. Third, the record reflects that the venireperson to whom defense counsel directed the question was not selected for the jury. Any prejudice he might have held could not have contributed to an erroneous verdict. And last, as we discuss below, after considering the entire record, the evidence supporting the jury's verdict was substantial.
We decide appellant's first issue against her.
2. Exclusion of evidence
In her second issue, appellant complains that the trial court erred by excluding a portion of Father's testimony about Amy, his mother. Father testified that growing up with Amy was "terrifying," but the trial court then sustained the State's relevancy objection.
In an offer of proof outside the presence of the jury, Father testified that he was the victim of "emotional, mental, and physical abuse" by his mother. Father testified that he tried not to make Amy mad because when he did, she would physically beat him as well as crying, yelling, ignoring him, throwing things, and acting coldly toward him. When Amy was angry it was "an absolute torture to live in the house. Silent treatment or blowing up."
In the offer of proof, Father also testified to an incident when he was in the fourth grade. After a school counselor questioned him repeatedly, Father told the counselor about the abuse at home. The counselor called Amy, who denied the abuse and then beat Father for sharing family business with an outsider. She ordered Father to tell the counselor he had lied about the abuse in order to get attention, and Father complied. And when Father was fifteen and his parents were divorcing, Amy told Father that his father hated him and he would have nowhere to go if he did not stay with her. "She made me feel like if I didn't turn against my Dad any abuse that would happen from then on would be partially my fault."
Also in his offer of proof, Father testified that he "hundred percent believe[s] that" D.C.'s outcry was "created and fabricated and put in [her] mind" by Amy. He explained that from "the way my mother dealt with [me] as a child I believe my mother has scared the children into believing that they have nowhere else to go" and that he and appellant "are terrible horrible rotten people." He explained that the children were afraid of him when he visited:
A. The kids were shown a box of syringes and the kids were told this is what your Mommy and Daddy do, do drugs. My mom made tons of calls to the police saying we were outside the house, [appellant] was outside the house. We were never ever.He concluded, "[m]y parents instilled this fear in the kids we were out to get them." He testified that his mother's behavior toward his children was consistent with her treatment of him growing up.
The court sustained the State's relevancy objection and excluded appellant's offer of proof. We review the trial court's exclusion of evidence for abuse of discretion. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). In reviewing relevance, as long as the trial court's ruling was within the zone of reasonable disagreement, the trial court did not abuse its discretion and its ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. TEX. R. EVID. 401. Even if the trial court erred by excluding the evidence, error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). But if the excluded evidence "'forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense,'" the exclusion may rise to the level of a constitutional violation that we review under the standard for constitutional errors. Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007) (quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)).
Appellant argues the evidence was highly relevant to two matters before the jury: (1) the truth of D.C.'s allegations; and (2) whether Amy manipulated or coached D.C. to make the allegations. She argues that Father's testimony was the only evidence she had in support of the theory that D.C.'s "story . . . was created and fabricated and put in [D.C.'s] mind by" Amy. In the excluded testimony, however, Father did not testify that Amy had manipulated him or anyone else into making false accusations against anyone.
We conclude the trial court did not abuse its discretion by excluding the evidence. Before the jury, both Father and appellant testified at length about Amy's manipulative behavior. Father testified that when he first began to date appellant, Amy was jealous and would say cruel and vulgar things to appellant. When appellant became pregnant, Father went to his parents and told them he and appellant were going to be married. Father testified that Amy's treatment of appellant became worse, "[b]y the things she would say, the cussing and the screaming, the yelling, treating her like dirt, like a dog." He explained that there was no limit on the things his mother would say to appellant. He testified that the births of the children did not improve Amy's relationship with appellant. He testified that he tried to "bring them together," but "if my mother has something set in her head there is nothing you can do to make it work." He concluded, "[f]rom the time we got married until presently now my mother has wanted me to get divorced from my wife. She offered me money. Offered me places to stay. She's guaranteed that if I divorce [appellant] that she has the ability to make sure we get the kids."
Appellant testified when she and Father began dating in high school, Amy "thought I was interfering with [Father's] schooling . . . . that I was trying to get him in trouble trying to distract him from getting his work done" and was "just around for sex." Amy was verbally abusive. When Father and appellant argued, Father would go to his mother's. Amy would then call appellant "and make me go up to the house and have us all sit down and discuss our marital problems with her." Appellant left Father at one point, saying she had "had enough," and that Father needed to put her, not his mother, first. Appellant testified, "[a]nd the entire time I was gone [Amy] was convincing him that she needed, I needed, he needed to divorce me." On holidays, "[e]verything had to be done her way. Never be at my family's. . . . It was always at her house." One year when appellant, Father, and the children spent Christmas at their own home, Amy "made sure that . . . we were the bad guys for that whole next couple of months." Amy "didn't come over for a while. Didn't ask us to go over a while. She didn't talk to us at church. She would notice the kids but not us." Father often confided in his mother, with consequences for both Father and appellant:
Q. Did you find over the years that he would tell [Amy] everything that happened between y'all?
A. Not everything. I had a problem with it because when she would go off on me[,] [h]is anxiety would get so bad he would tune everything out and he wouldn't defend me. It's like he would shut down.
In closing argument, appellant's counsel summarized appellant's and Father's testimony about Amy, and argued, "[s]o what we see is this animosity, this family dynamic that now once and for all Amy can get rid of [appellant]." Over time, counsel argued, Father reported negative information about appellant to Amy about other men in appellant's apartment and the sex swing. "Amy clings on that" and "instills it in [D.C.]," in "her manipulative coaching ways." For a time, Father and appellant were not permitted to have contact with the children. When contact was again permitted, then "[l]ow and behold we get an outcry statement" from D.C. "In this case it was Amy['s] . . . conscious decision is here comes the outcry. How convenient is it when [Father] and [appellant] are getting to have contact with their kids outcry comes about. Not a year before. Not a year later."
We conclude that appellant's substantial rights were not affected by the exclusion of the evidence. See Walters, 247 S.W.3d at 218-19. Nor did the exclusion preclude appellant from presenting her defense. See id. The jury heard testimony from both Father and appellant on the subject of Amy's manipulative behavior. In addition, the jury heard extensive testimony from, and cross-examination of, both Amy and D.C. "[J]urors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony." Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). There was ample evidence from which the jury could have believed appellant's contention that Amy intended to sever appellant's ties with the children and was in a position to manipulate D.C. to achieve that result. Conversely, the jury could have believed D.C.'s testimony and the other evidence that supported it. The jury resolved this conflict against appellant. Because appellant's substantial rights were not affected by the trial court's ruling, we decide her second issue against her. See id.
3. Cross-examination on "bumping"
In her third issue, appellant contends the trial court erred by admitting testimony about her use of methamphetamine. In her direct testimony, appellant had explained that she has chlamydia, a sexually-transmitted disease. She tested positive for the disease in June 2013. She also offered medical records into evidence showing that, in her understanding, "my fallopian tube on the left side is permanently damaged and is enlarged due to extended, I had chlamydia an extended amount of time than was normal." She testified that she would have had the disease "well before June 2013." Although appellant does not explain the purpose of this testimony, the State contends in its brief that "[t]he defense tried to suggest that, had appellant sexually assaulted the complainant as alleged, the complainant would have also contracted chlamydia."
Appellant contends that in response, the State attempted to show that her drug use caused the permanent damage, not chlamydia. She argues that the trial court should not have admitted the following cross-examination:
Q. What is bumping?
. . .
A. Bumping. You mean like intravenously using?
Q. Yes.
A. Okay.
Q. How does that work?
A. You use, you fill a syringe up and you put it in your veins and shoot it up.
Q. No. You put it where? Where did you put it?
A. In your butt. That's where it goes.
Q. There was other things you had done that was gonna cause this damage, correct?
A. No. If you want to know what's bumping you fill a broken syringe up and put it in your butt and insert it. That's where it goes.
So no, it's not gonna cause any other damage to my fallopian tubes. I'm sorry you're wrong.
Q. You made it clear it was in your vagina.
A. No, I did not. You're wrong.
Appellant contends that evidence of a crime is not admissible to show character conformity. TEX. R. EVID. 404(b)(1). The record does not reflect whether appellant objected on this ground at trial. When the State began to question appellant about "bumping," appellant's counsel objected "to this line of questioning . . . subject to our discussion and ask for a running objection at this time." The court stated, "Objection was made at the bench conference. You have a running objection to this subject matter. Objection overruled." Assuming that appellant made her rule 404(b)(1) objection to the admission of the evidence, we conclude the trial court did not err by overruling the objection.
Immediately after appellant's last answer quoted above, the State passed the witness, and appellant explained that the medical advice she received, supported by her medical records, was that she had permanent damage to her fallopian tube due to prolonged exposure to chlamydia. Appellant explained that the doctor did not question her about drug use or injections in her vagina; the only cause discussed was the sexually transmitted disease. The State referred to the issue again in closing argument, stating that although appellant tried to portray herself as a "pious, devout mother," "[t]hat devout mother also has injected meth in her anus." Appellant's counsel objected, stating that there is "no testimony from anybody especially my client saying that was in fact occurring." The trial court overruled the objection, but admonished the jury that "it is left to you to decide what evidence you heard, what to believe whatever it's significant in your deliberations."
Under rule of evidence 404(b)(1), "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Exceptions to the rule include admission of the evidence "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2). The State's questions about "bumping" were questions regarding appellant's commission of a crime. But the evidence was not offered "solely for proving bad character and conduct in conformity with bad character." Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016). Rule 404 excludes only evidence offered for that sole purpose. Id. Instead, the evidence was offered to rebut appellant's testimony that damage to her fallopian tubes was caused by prolonged chlamydia. It was within the trial court's discretion to consider this evidence admissible for the purpose of rebutting a defensive theory. See id. (trial court's ruling should be upheld if within "the zone of reasonable disagreement").
And even if the court abused its discretion, admission of the evidence did not affect appellant's substantial rights. See Gonzalez v. State, 544 S.W.3d 363, 373-75 (Tex. Crim. App. 2018) (even though probative value of evidence of defendant's drug use was substantially outweighed by danger of unfair prejudice, error in admitting evidence did not affect defendant's substantial rights and thus was not harmful). We presume the jury followed the trial court's limiting instruction about consideration of other offenses. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Further, as we discuss below, the evidence supporting appellant's conviction was substantial. We decide appellant's third issue against her.
4. Jury charge
In her fourth issue, appellant contends her right to a unanimous jury verdict was violated and she suffered egregious harm because "the trial court's instructions to the jury included a disjunctive definition of sexual performance by a child, even though the indictment charged Appellant in the conjunctive." The indictment alleged that appellant "did then and there intentionally and knowingly employ, authorize and induce [D.C.] . . . to engage in sexual conduct and a sexual performance, to-wit: the LEWD EXHIBITION OF THE GENITALS . . . ." (Emphasis added). The jury instruction read, "A person commits an offense of sexual performance by a child younger than 14 years of age if, knowing the character and content thereof, she employs, or authorizes, or induces a child younger than 14 years of age to engage in sexual conduct or a sexual performance . . . ." (Emphasis added). The instruction continued, "if you find from the evidence beyond a reasonable doubt that . . . [appellant], knowing the character and content of said sexual conduct or sexual performance, to-wit: the lewd exhibition of the genitals, and the defendant did then and there employ, authorize, or induce [D.C.] . . . to engage in said sexual conduct or sexual performance, then you will find the defendant guilty of Sexual Performance of a Child under 14 . . . ." (Emphasis added).
Appellant argues that her constitutional right to a unanimous verdict was violated by this disjunctive instruction. See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (under state constitution, jury unanimity is required in felony cases). She argues that "there is sufficient evidence that Appellant induced or authorized D.C. to engage in the lewd exhibition of her genitals but no evidence that she 'employed' her to do so." She relies on Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000) (op. on reh'g), and Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007), in support of her argument.
In Pizzo, the defendant was charged with indecency with a child by contact in violation of penal code section 21.11(a)(1). Pizzo, 235 S.W.3d at 712. The indictment charged Pizzo with touching the breasts and genitals of the victim, but the jury instructions authorized a conviction if the jury found he touched the victim's breasts or the genitals. Id. The breast touching and genital touching alleged by the State occurred during the same incident. Id. at 716. The court concluded that indecency with a child by contact is a conduct-oriented offense, and that three separate types of conduct—touching the anus, touching the breast, and touching the genitals with the requisite mental state—were three separate offenses under the penal code. Id.at 719. The charge permitted some jurors to convict Pizzo for touching the victim's breasts, and some jurors to convict him for touching the victim's genitals. Id. Consequently, the jury could have convicted Pizzo without reaching a unanimous verdict. Id. The court reversed and remanded the case to the court of appeals for a harm analysis. Id. at 712.
Similarly, in Francis, the defendant was charged with a single count of indecency with a child, but the State introduced evidence of four separate acts of indecency, of which the State elected to proceed on two. Francis, 36 S.W.3d at 122. One of the incidents involved touching of the victim's breasts, and one involved the touching of the victim's genitals. Id. Over the appellant's objection, the court allowed a conviction on a finding that appellant did "engage in sexual contact by touching the breasts or genitals of the victim." Id. at 122-23. The court of criminal appeals concluded it was possible that some members of the jury convicted appellant on the breast-touching offense and believed he was innocent on the genital-touching offense, while others convicted him on the genital-touching offense and believed he was innocent on the breast-touching offense. Id. at 125. Consequently, the trial court erred by charging the appellant in the disjunctive. Id. As in Pizzo, the court of criminal appeals remanded the case to the court of appeals for a harm analysis. Id.
The State responds that if a defendant is charged with different criminal acts, the trial court must instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon which act the defendant committed. Ngo, 175 S.W.3d at 744. But if the defendant is charged with a single statutory offense, a jury may rely on different means of committing that single offense in reaching a unanimous verdict of guilty. See id. at 746 (citing Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality op.)); see also Pizzo, 235 S.W.3d at 714-15 (unanimity requirement is not violated when jury has option of choosing between alternative modes of commission). The State argues that the terms "employ," "authorize," and "induce" merely describe the different "manner or means" of committing the single offense of causing D.C. to engage in the lewd exhibition of her genitals. See id. at 745 ("The phrase 'manner or means' describes how the defendant committed the specific statutory criminal act."); see also Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) ("the requirement of jury unanimity is not violated by a jury charge that presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense"). As we discuss below, we resolve appellant's issue on the ground that she did not suffer egregious harm, rather than on the State's "manner and means" argument.
Appellant did not object to the jury charge on the ground that it violated her right to a unanimous verdict. Consequently, as appellant concedes, she will obtain a reversal only if the error is so egregious and created such harm that she has not had a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). To determine whether appellant suffered egregious harm, we evaluate (1) the entire jury charge, (2) the state of the evidence, (3) arguments of counsel, and (4) any other relevant information contained in the record as a whole. Gelinas v. State, 398 S.W.3d 703, 705-06 (Tex. Crim. App. 2013).
a. The jury charge
We have quoted the pertinent language from the jury charge above. In addition, the charge included an instruction that the jury's verdict must be unanimous.
Appellant was indicted under section 43.25 of the penal code, which provides in relevant part that "[a] person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance." TEX. PENAL CODE ANN. § 43.25(b). Appellant argues the jury charge authorized the jury to convict her without discriminating whether she:
1. "employed" D.C. to engage in sexual conduct or a sexual performance;
2. "authorized" D.C. to engage in sexual conduct or a sexual performance; or
3. "induced" D.C. to engage in sexual conduct or a sexual performance. Consequently, she argues, some jurors could have found that she "employed" D.C.; some could have found that she "authorized" D.C.; and some could have found that she "induced" D.C., resulting in a non-unanimous verdict of guilt.
Because "employ," "authorize," and "induce" are not defined in the statute, and were not defined for the jury in the trial court's instructions, we give them their ordinary meanings. See Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012). We discussed the commonly-used meanings of "authorize" and "induce" in Ex parte Fujisaka, 472 S.W.3d 792, 797 (Tex. App.—Dallas 2015, pet. ref'd):
In its common meaning, one "authorizes" conduct by empowering the actor or affording a right to act. In re Hecht, 213 S.W.3d 547, 567 (Tex. Spec. Ct. Rev. 2006). The term may also be defined as "to give legal authority; to empower . . . to formally approve, to sanction." Id. (quoting BLACK'S LAW DICTIONARY 143 (8th ed. 2004)). The definition necessitates "affirmative actions on the part of the authorizer." Id. To "induce" means "to move and lead by persuasion or influence." Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd, untimely filed) (citing WEBSTER'S NEW INTERNATIONAL DICTIONARY 1154 (3d ed. 1981)). "Inducement" means "[t]he act or process of enticing or persuading another to take a certain course of action." Scott v. State, 173 S.W.3d 856, 862 (Tex. App.—Texarkana 2005) (quoting BLACK'S LAW DICTIONARY 790 (8th ed.)), aff'd in part, rev'd in part, 235 S.W.3d 255 (Tex. Crim. App. 2007). It also means "to lead or move by persuasion or influence, as to some action or state of mind . . . to bring about, produce, cause." Scott, 173 S.W.3d at 862 (quoting RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 975 (2d ed. 1987)).The common meaning of "employ" is "to make use of," "to use or occupy (as time) advantageously," "to use or engage the services of," "to devote to or direct toward a particular activity or person," or "occupy, busy" (as to employ oneself in an activity). WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 743 (1981). The common definition is not limited to hiring a person for remuneration.
b. The evidence
Discounting appellant's exculpatory evidence, the evidence shows without contradiction that appellant (1) led D.C. by persuasion or influence to engage in sexual conduct or sexual performance, (2) approved and sanctioned D.C. to engage in sexual conduct or sexual performance, and (3) devoted or directed D.C. to engage in sexual conduct or sexual performance. See Ex parte Fujisaka, 472 S.W.3d at 797; WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 743. D.C. testified:
Q. Okay [D.C.], when you . . . and your brothers [were] living with your mom [appellant] in that apartment down here in Dallas, were there times that your Mom would tell you to take your clothes off in front of these other men?
. . .
A. Yes, sir.
. . .
Q. So she would tell you to do this?
A. Yes.
. . .
Q. [D.C.], were there times did your mother tell you to get in the [sex] swing?
A. Yes, or one of the men.
Q. One of the men?
A. Yes.
Q. When that's happening is your mom there with the men too?
A. Yes.
Q. When you were [sic] get in that swing would you have your clothes on or off?
A. Off.
. . .
Q. [D.C.], when you were on the swing did were [sic] any of the people any of the adults touching you while you were on the swing?
A. Yes.
Q. Who was touching you?
A. Well one of the men.
Q. With what? What part of their body?
A. Their penis.
Q. Their penis. What part of your body were they touching you on your body?
A. The vagina.
Q. Okay. Did that, how did that feel?
A. Terrible.
Q. And your mother was there when this is happening?
A. Yes, sir.
Q. Would your mother say stuff when this is happening?
A. Yes, sir.
Q. What would she say?
A. She said this is what you should do when you are older.
D.C. also testified that appellant would touch her when D.C. did not have any clothes on. D.C. said appellant's mouth touched her, and D.C.'s mouth touched appellant on appellant's "private areas." Most of the time when appellant was touching D.C., the men were also in the apartment. Although appellant's clothes were on, D.C.'s clothes were off, and her mother touched D.C.'s vagina and her breast area. Appellant made moaning noises when this was happening. The men took pictures while D.C. posed and danced. The men would tell D.C. to pose, but appellant was "right there while this is happening" and did not stop "any of this stuff happening to" D.C. D.C.'s testimony continued,
Q. "[D.C.], [is appellant] wanting you to do this stuff? What's going on? She encouraging you?
A. Yeah, pretty much, yes.
Q. At times telling you to do this stuff?
A. Yes.
. . .
Q. When I say stuff we talking like the posing and the pictures?
A. Yes.
Q. When you didn't have any clothes on?And finally, D.C. testified,
A. Yes.
Q. Okay. I know this is the hard part. I'm gonna ask you about the time, you told us a little bit about the time your mouth had to touch her on her private.
A. Yes.
Q. Did that happen one time or more than one time?
A. One time.
Q. When I say the word private we're talking about her vagina?
A. Yes.
Q. She made you do that?
A. Yes, sir.
Q. How did she make you do that, by words, actions?
A. By words.
. . .
Q. Okay. Did she also in turn put her mouth on your vagina?
A. Yes.
Q. And so her mouth was contacting and touching your vagina too?
A. Yes.
Further, Lara Welch, the forensic interviewer, supported D.C.'s testimony. Welch described D.C. as "one of the most descriptive kids I've ever interviewed." D.C. told Welch about a sex swing she had to get in, fully unclothed. Appellant and a man would dance naked behind her while another man videoed. They would run their hands over D.C.'s vagina (D.C. originally described her vagina to Welch as her penis). D.C. recalled sensory details, such as a fingernail scratch that hurt. Welch testified:
Q. So why is . . . sensory detail important when a child describes sexual abuse?
A. Well when you are thinking of an adult coaching a child these sensory details, our minds aren't working the same way a child's mind is working. When we hear or see something we may perceive differently than a child. Childlike behavior comes out in the sensory details. It hurt because I could feel their fingernails or something was gooey, sticky, or I heard clapping sounds. As adults we know what they are. As children that's all they refer to. That childlike behavior is still there. Adults don't necessarily think to coach that.
Other details of D.C.'s testimony were corroborated by evidence at trial. For example, there was no question that appellant purchased a sex swing from Shackelford and had it out in her Dallas apartment. Shackelford confirmed the sale and Father conceded that he saw the swing in appellant's apartment. The witnesses' testimony differed only on an exact description of the swing.
c. Arguments of counsel
In closing argument, neither counsel discussed the actual wording of the jury charge, the meaning of "authorize," "employ," or "induce," or any specific definition of any mental state included in the charge. The defense argued that D.C.'s version of the timeline was impossible. Defense counsel also argued that Amy manipulated D.C. to make her outcry. And the defense argued that no other evidence supported D.C.'s testimony. The State in turn emphasized the facts supporting D.C.'s version of events. Both the State and the defense emphasized the credibility or lack of credibility of the various witnesses and discussed the possible motives behind their actions. In sum, each counsel asked the jury to decide whether appellant was telling the truth and had done none of the acts D.C. described, or whether D.C. was telling the truth about her mother's actions.
d. No egregious harm
We have examined the entire record, including the jury charge, the evidence, and the arguments of counsel. Gelinas, 398 S.W.3d at 705-06. Given the state of the record, we conclude there was no evidentiary basis from which some jurors could have found that appellant "induced" but did not "authorize" D.C. to engage in sexual conduct or sexual performance, while others found that appellant "authorized" but did not "induce" D.C. to engage in sexual conduct or sexual performance. See Jourdan, 428 S.W.3d at 99 (given state of the evidence, no egregious harm from failure of jury charge to require agreement whether appellant committed penile versus digital penetration).
And although there was no evidence of, and a juror could not have found, "employment" in the sense of payment for work ("to engage the services of") under the definition above, there was some evidence that appellant "made use of" D.C. to engage in the lewd exhibition of her genitals in the same sense that appellant approved, sanctioned, enticed, or persuaded—that is, "induced" and "authorized"—D.C. But no rational juror could find that appellant "made use of D.C." but did not approve, sanction, entice, or persuade her.
Appellant concedes that there was "some evidence that Appellant both 'induced' and 'authorized' D.C. to engage in the lewd exhibition of her genitals," but argues that jurors could have differed on "the specific criminal act [they] convicted Appellant of committing." We disagree. Appellant's primary defense was that no sexual conduct or sexual performance by D.C. ever took place. She offered her own testimony, supported by the testimony of Father (who "hundred percent believe[d]" that D.C.'s story was "created and fabricated and put in [D.C.]'s mind" by Amy) and Shackelford ("It didn't happen"), as well as evidence tending to show that the children were in Dallas for too short a time for the events to have occurred as D.C. recounted them. Having convicted appellant, however, the jury "obviously rejected [her] version" of the facts. See Jourdan, 428 S.W.3d at 98. Whether or not the jury believed the exculpatory evidence "was not a function of its ability to agree" whether appellant "induced" D.C. or whether she "authorized" D.C. to engage in sexual conduct or sexual performance. See id. ("Whether or not the jury believed the appellant's exculpatory testimony was not a function of its ability to agree whether he penetrated her sexual organ digitally or contacted it with his penis."). "Thus, any error in the jury charge in failing to require such agreement did not serve to undermine the particular defense [appellant] chose to pursue." Id. In Jourdan, under similar circumstances, the court determined that the failure of the trial court to require jury unanimity, "assuming it was error," did not cause the appellant to suffer egregious harm. See id. at 99. In reaching our conclusion, we do not hold that "authorize," "employ," or "induce" will always apply to the same acts by a defendant charged under penal code section 43.25. On this record, however, a rational juror could not conclude that one or two of these terms applied to appellant's conduct, but not all three.
We conclude that error, if any, in the jury charge's disjunctive submission was not so egregious and did not create such harm that appellant was deprived of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. We decide appellant's fourth issue against her.
CONCLUSION
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170665F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1675149-X.
Opinion delivered by Justice Lang-Miers; Justices Evans and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 26th day of June, 2018.
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1675738-X.
Opinion delivered by Justice Lang-Miers; Justices Evans and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 26th day of June, 2018.