Hiatt v. State

ARES WENDELL HIATT, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-19-00564-CR

Court of Appeals Fifth District of Texas at Dallas

November 30, 2020

On Appeal from the 366th Judicial District Court Collin County, Texas

Trial Court Cause No. 366-80604-2018

MEMORANDUM OPINION

Before Justices Myers, Nowell, and Evans

Opinion by Justice Myers

A jury convicted appellant Ares Wendell Hiatt of aggravated sexual assault of a child and the trial court assessed punishment at thirty-three years in prison. In three issues, appellant contends his right to a unanimous jury verdict was violated; the trial court abused its discretion in overruling appellant's rule 403 objection; and the evidence is insufficient to support the conviction. We affirm.

BACKGROUND

The complainant's mother testified that she started dating appellant around June or July of 2014, and that she and her two daughters moved in with him in September of 2014. At the time, the complainant was almost three years' old. The complainant and her older sister shared bunk beds, but when her older sister went to live with her biological father, the complainant was left alone in the bedroom. In April of 2016, the complainant's mother took a job at Target and started working overnight, from around 10:00 p.m. to 6:00 a.m. or 10:00 a.m. in the morning.

In October of that year, the complainant told her mother appellant had "licked her pee-pee." That night, the complainant's mother confronted appellant and told him not to come home. When appellant asked why, the complainant's mother told him about the complainant's allegations. Appellant denied the accusations and came home later that night anyway. The complainant's mother spent the night in the complainant's room. A few weeks after the outcry, the complainant also told her mother she thought she might have dreamt the sexual abuse. Asked about this on direct examination, the complainant's mother testified as follows:

Q. [STATE:] At one point, did she say that she thought it might have just been a dream?

A. A few weeks later.

Q. She said that?

A. Yeah.

Q. And when you heard that she thought it might be a dream, what did you take that as?

A. As an excuse.

Q. Did you think, okay, maybe there is a possibility that this didn't happen?

A. I didn't want to believe it, of course, but I had to believe her.

The complainant's mother arranged for her children to stay with a friend while she worked nights. This went on for a few weeks or perhaps a month, and during that time appellant told the complainant's mother he had allowed the complainant to watch a pornographic "Princess and the Frog" video, but claimed it was a mistake. According to what appellant told the complainant's mother, the complainant had wanted to watch a movie, "The Princess and the Frog," so he searched for it on YouTube. After finding what he thought was the correct video, he handed the tablet to the complainant. Appellant told the complainant's mother that he immediately switched the video to another cartoon when the complainant brought him the tablet and he noticed it "was a sexual movie."

The complainant testified that the "Princess and the Frog" video showed the princess's "friend . . . licking her pee-pee." The complainant said she saw this video only once and that appellant "didn't mean to" show it to her. She also testified that appellant switched to a "Scooby-Doo" cartoon when she showed him what was on the video.

Detective Kristina McClain of the Plano Police Department testified that she searched the internet and found on Pornhub what she believed was the same video appellant had played for the complainant. The video was admitted into evidence and played for the jury.

The complainant's mother testified that about a month after the complainant'soutcry, in November of 2016, she allowed her two children to move back into the house. She said she did this based on a promise from appellant that he would install video cameras to record what was going on in the house. Eventually, however, the complainant's mother discovered the cameras had stopped recording. Then, around January of 2017, the complainant's mother found what "looked like modified sex toys in our bedroom," and they were stored in a bag that she found in a filing cabinet next to appellant's desk. She recognized two of the sex toys as items she and appellant had used together but did not recognize the "finger-wipe things" or the "female arousal serum" that were found in the bag along with the other sex toys. She took the bag to the police. When confronted about the sex toys, appellant claimed he had used the objects on himself.

The complainant recognized some of the items that were found in the bag. A black flashlight, for example, was found in the bag, and the complainant testified appellant would come in her room at night with a black flashlight, take off her pajamas and underpants, and lick her "pee-pee." And during her forensic interview with Eligio Molina of the Collin County Children's Advocacy Center, the complainant used a drawing of a girl to identify her "pee-pee" as the part her body "that she uses to pee." A toy bullet from a Nerf gun that had been cut off at one end was also found in the bag, and the complainant testified that she recognized "the toy bullet dart" because appellant had shown it to her.

The complainant testified that the abuse where appellant licked her "pee-pee"happened "[l]ots of times" in her bedroom, and it happened once in her mother's bedroom. It occurred at night when she slept in the bottom bunk of the bunkbeds she shared with her sister, and it stopped after she and her sister switched bunks. The complainant also remembered telling her mother that the abuse was a dream but testified it was not a dream:

Q. [STATE:] And was it a dream or was it not a dream?

A. It wasn't a dream because I—after he did that, I kind of felt myself, and it wasn't a dream.

Q. It wasn't a dream?

A. Yeah.

Q. And do you remember being awake or seeing that flashlight sometimes when he would do it to you?

A. Yeah. I would peek a little when I was waking, but he didn't see me because my eyes were a little open.

Q. Did you not want him to know that you were awake?

A. Yeah.

Q. And why didn' t you want him to know?

A. Because maybe he would get scared.

The complainant could not identify appellant as the person who assaulted her, but she testified that she had not seen appellant in a long time and that she was "a little scared" when she had to look at the table where he was sitting:

Q. [STATE:] . . . . Tell me, before today, had it been a really long time before you'd seen [appellant]?

A. Yes.

Q. And did it make you a little scared when I asked you to look over at his table?

A. Yes.

The jury ultimately convicted appellant of aggravated sexual assault of a child, and the trial court assessed punishment at thirty-three years in prison.

DISCUSSION

1. State's Election

In his first issue, appellant argues his "right to a unanimous jury was violated because the trial court admitted additional allegations of sexual abuse" that were not included in the indictment. Thus, according to appellant, "the jurors could have relied on any of the multitude of separate similar instances of sexual abuse that the victim testified to during trial and there would be no manner to determine if they all agreed on the same one instance of sexual abuse beyond a reasonable doubt."

As explained by the Court of Criminal Appeals, the general rule is that "[w]hen one particular act of sexual assault is alleged in the indictment, and more than one incident of that same act of sexual assault is shown by the evidence, the State must elect the act upon which it would rely for conviction." Owings v. State, 541 S.W.3d 144, 150 (Tex. Crim. App. 2017) (internal quotation omitted). "Once the State rests its case in chief, upon a timely request by the defense, the trial court must order the State to make an election." Id.

There are four fundamental principles or purposes that are served by an election and its accompanying procedures:

• to protect the accused from the introduction of extraneous offenses;

• to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty;

• to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred;

• and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.

Id. (citing Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006)). The Court of Criminal Appeals has applied these Phillips factors in conducting a harm analysis when the State made no election at all. See Owings, 541 S.W.3d at 150-51; Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006). Moreover, this Court has held that a trial court's failure to instruct the jury concerning the State's election placed a defendant in the same position as though no election had been made, and we applied the Phillips constitutional harm standard. Duffey v. State, 326 S.W.3d 627, 631-32 (Tex. App.—Dallas 2009, pet. ref'd). Thus, we will reverse the trial court's judgment unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction. See id. at 632; see also TEX. R. APP. P. 44.2(a).

According to the record in this case, after moving for a directed verdict defense counsel requested that the State elect the particular incident on which it would rely. The State announced that "[t]he election we are going to go forward onis, one time, at night, in [the complainant] and [her sister's] bedroom, in [the complainant's] bed." After the State made that election, appellant moved for a mistrial, arguing:

The State alleged one event, and, yet, without giving any notice of any kind, they proceeded to bring in evidence

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