Bradshaw v. State

466 S.W.3d 875

Barney Samuel Bradshaw, Appellant

v.The State of Texas, Appellee

No. 06–14–00165–CR

Court of Appeals of Texas, Texarkana.

Submitted: March 23, 2015

Decided: May 5, 2015

Discretionary Review Refused October 7, 2015

Jeff Jackson, Attorney at Law, Kilgore, TX, for appellant

Katharina Squires Hegar, Assistant County Attorney, Henderson, TX, for appellee

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Chief Justice Morriss

In prosecuting Barney Samuel Bradshaw for the continuous sexual abuse of S.S.,¹ a girl less than fourteen years of age at the time of the offense, the State was allowed to use evidence of three extraneous acts of sexual misconduct by Bradshaw, one against each of two other girls who lived in the same house as Bradshaw and one against a girl who visited the house. See Tex.Code Crim. Proc. Ann . art. 38.37 (West Supp. 2014). B.P., the visiting girl, testified to Bradshaw's digitally penetrating her vagina after furnishing alcoholic beverages to her, then aged thirteen. A.G. testified that, at age fifteen, she was forced by Bradshaw to disrobe for him. K.M. testified that, when she was sixteen or seventeen years old, Bradshaw touched her breasts and private parts under her clothing.

Bradshaw's appeal of his conviction and sixty-year sentence complains of the admission of these extraneous offenses. We affirm the trial court's judgment, because, assessed by our abuse-of-discretion standard of review, (1) under Article 38.37, sufficient evidence supported admission of the evidence of B.P.'s sexual assault and (2) under Evidence Rule 403, the prejudicial effect of the evidence from A.G. and K.M. did not outweigh its probative value.

(1) Under Article 38.37, Sufficient Evidence Supported Admission of the Evidence of B.P.'s Sexual Assault

Bradshaw claims error in the admission into evidence of testimony concerning the sexual assault against B.P., because that evidence was not adequate to support a jury finding that, beyond a reasonable doubt, he committed the separate offense. He centers his argument on the fact that a grand jury no-billed him on that charge. But, because there was more evidence available to this trial court than to the grand jury, we disagree.

Article 38.37 permits the introduction of “[e]vidence of extraneous offenses or acts” in certain types of sexual abuse cases, including this one. SeeTex.Code Crim. Proc. Ann . art. 38.37. The relevant portions of this Article provide,

Sec. 2. (a) Subsection (b) applies only to the trial of a defendant for:

(1) an offense under any of the following provisions of the Penal Code:

....

(B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);

....

(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2–a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

Sec. 2–a. Before evidence described by Section 2 may be introduced, the trial judge must:

(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and

(2) conduct a hearing out of the presence of the jury for that purpose.

Tex.Code Crim. Proc. Ann . art. 38.37, §§ 2, 2 –a.

Evidence of the initial extraneous offense was presented to the trial court at a hearing conducted outside the presence of the jury, as required by Section 2 –a(2). At the conclusion of the hearing, the trial court determined that the evidence relating to the sexual assault of B.P. was adequate to support a finding by the jury that, beyond a reasonable doubt, Bradshaw committed the offense. Bradshaw claims the trial court erred in this determination.

“[A] trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse-of-discretion standard.” Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App.2011) (citing Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.2005) ). “A trial court does not abuse its discretion if the decision to admit evidence is within the ‘zone of reasonable disagreement.’ ” Marsh v. State, 343 S.W.3d 475, 478 (Tex.App.—Texarkana 2011, pet. ref'd) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g)). “If the trial court's decision on the admission of evidence is supported by the record, there is no abuse of discretion, and the trial court will not be reversed.” Id . (citing Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App.2002) ; Montgomery, 810 S.W.2d at 379 ). In determining whether the trial court abused its discretion, “[w]e may not substitute our own decision for that of the trial court.” Marsh, 343 S.W.3d at 478 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003) ).

At a hearing conducted outside the jury's presence, B.P. testified that, in October 2010, when she was thirteen, she attended a sleepover birthday party at the home of Bradshaw's step-daughter, A.G. Bradshaw, who was living in the home with A.G.'s mother, provided alcohol to the young teenagers at the party. Bradshaw was also drinking and “acting weird.” At one point in the evening, B.P. was left alone outside with Bradshaw, where the girls had been enjoying a bonfire. While the two were alone, Bradshaw asked B.P. if “he could perv on [her].” Although B.P. did not understand what Bradshaw meant, she told him that he could not. Bradshaw then kissed B.P. on the lips, even though she protested. B.P. was scared and went into the house to use the restroom. As she was at the sink washing her hands, Bradshaw entered the bathroom, bent B.P. over the sink and inserted his fingers into her vagina, moving them in and out. Bradshaw told B.P., while she was crying and protesting, that he was “going to f– the s– out of [her].” Bradshaw eventually stopped and walked out of the bathroom.

B.P. explained that she did not immediately tell anyone of this encounter because she was scared. Instead, B.P. and her friends decided to go to Walmart to purchase toilet paper for the purpose of “TP'ing” trees “at people's houses.” After the group returned to A.G.'s house, B.P. called a friend to drive her home.² Before she left, Bradshaw told B.P. that “he was going to f– the s– out of [her] over and over again.” Soon thereafter, B.P.'s friend arrived and took her home,³ whereon B.P. took a shower.

After B.P. told her mother about the assault that same morning, B.P.'s mother took her to the police station, where the incident was reported to Officer Dee Ann Brown of the Kilgore Police Department. B.P. was examined by a sexual-assault nurse examiner (S.A.N.E.) at Good Shepherd Hospital that day.⁴ After the examination, Brown followed B.P. and her mother home from the hospital to collect the panties B.P. was wearing at the time of the incident⁵ and logged them into evidence. B.P. was subsequently interviewed by an employee of the Child Advocacy Center (CAC) in Longview.⁶

Officer Kealsey Keahey, a detective with the Criminal Investigation Division of the Kilgore Police Department, was assigned to investigate the aggravated sexual assault claim. Keahey was able to observe, by television screen in a private room, B.P.'s CAC interview as it occurred. During the interview, B.P. stated that, while at a friend's house, Bradshaw sexually assaulted her in the bathroom of his home.

Keahey subsequently interviewed Bradshaw, who claimed that B.P. fabricated the event as an excuse to leave the house with the friend who came to pick her up. Bradshaw conceded that, at one point during the evening, he was alone in the bathroom with B.P. According to Bradshaw, he and B.P. were in the bathroom brushing their teeth, when B.P. shut the door. As Bradshaw was leaving, he stated that B.P. backed up into him, but that he moved her away and left. Bradshaw claimed he told B.P. to wait until she was eighteen.⁷

At the conclusion of his investigation, Keahey obtained an arrest warrant for Bradshaw and submitted the evidence to the Gregg County District Attorney's Office. B.P. was never called to testify before the grand jury, and the case against Bradshaw was ultimately no-billed.

Bradshaw contends that, because the case against him was no-billed by the grand jury, the trial court abused its discretion in finding that the evidence before it was adequate to support a finding by the jury that, beyond a reasonable doubt, he committed the offense. Bradshaw does not cite any authority in support of this contention. In the interests of justice, however, we will nevertheless address his complaint.⁸

The fact that the grand jury did not indict Bradshaw for the alleged aggravated sexual assault of B.P. is of no consequence to the trial court's determination of whether evidence of this conduct was properly admitted under Article 38.37 of the Texas Code of Criminal Procedure. A no-bill does not mean that Bradshaw did not commit the separate offense; rather, it “is merely a finding that the specific evidence brought before the particular Grand Jury did not convince them to formally charge a person with an offense.” Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996). Consequently, no-billed conduct can be admissible as an extraneous offense. See id . (regarding admissibility at punishment phase).

Here, the State called four witness to testify at the Article 38.37 hearing regarding Bradshaw's alleged sexual assault of B.P. in October 2010. Two of these witnesses were B.P. and her mother, neither of whom testified before the Grand Jury. These witnesses, together with Keahey—who likewise did not testify before the Grand Jury—offered detailed testimony regarding B.P.'s encounter with Bradshaw and the ensuing investigation of that encounter. The trial court also viewed...