Merrit v. State

529 S.W.3d 549

James Larry MERRIT, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00426-CR.

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed July 25, 2017

Sarah Beth Landau, Houston, TX, for Appellant.

Dan McCrory, Houston, TX, for Appellee.

Panel consists of Justices Christopher, Brown, and Wise.

OPINION

Ken Wise, Justice

A jury found appellant James Larry Merrit guilty of aggravated sexual assault of a child and assessed punishment at 20 years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends that: (1) Texas Code of Criminal Procedure article 38.072, the criminal statute permitting admission of out-of-court statements regarding sexual abuse, is unconstitutional; (2) the trial court reversibly erred by admitting hearsay statements of the complaining witness through the forensic interviewer; and (3) the cost bill charging appellant $140 for summoning witnesses and mileage is unconstitutional. We affirm.

BACKGROUND

Appellant is the brother of the complainant's maternal grandmother, making him the great uncle of the complainant, Barbara.¹ In February 2012, Officer Monica Carmichael of the Houston Police Department went to Barbara's school to talk to Barbara because she was having difficulty contacting Barbara's mother about another matter. Barbara was then thirteen years old.

During their discussion, Barbara reported to Officer Carmichael that appellant had sexually abused her. Barbara told Officer Carmichael that one day in early January of that year, she went to her grandmother's house after school and was watching television in appellant's bedroom. According to Barbara, appellant came into the bedroom, locked the door, and "raped her" by putting his "dick" in her vagina. Barbara told Officer Carmichael that she had not told anyone else about the incident because she feared no one would believe her.

Officer Carmichael began investigating Barbara's allegations. She spoke with the complainant's mother and grandmother, but they did not seem concerned. Officer Carmichael also spoke to appellant, who denied abusing Barbara. As part of the investigation, Barbara was taken to the Children's Assessment Center (CAC) for an interview. At the CAC, Barbara recounted to forensic interviewer Susan Odhiambo how she had been sexually assaulted.

At trial, Barbara testified in detail about the incident and stated that appellant not only had vaginal sex with her, but had performed oral sex on her as well. The State also presented as witnesses Officer Carmichael, Odhiambo, and Dr. Lawrence Thompson, a licensed psychologist and a director of the CAC.²

Appellant testified in his defense, denying Barbara's allegations. The defense also presented Shelyse Brooks, a family friend, who testified that Barbara told her that she had made up the allegations against appellant. Brooks acknowledged, however, that she never gave that information to police.

ISSUES AND ANALYSIS

In his first issue, appellant contends that Officer Carmichael's testimony was inadmissible because Texas Code of Criminal Procedure article 38.072 is unconstitutional. In his second issue, appellant contends that the trial court reversibly erred by admitting hearsay statements of Barbara through the forensic interviewer, Susan Odhiambo. In his third issue, appellant contends that even though appellant was found indigent during trial and on appeal, the cost bill reflects that he was charged $140 for summoning witnesses and mileage in violation of the Confrontation Clause and the Right to Compulsory Process.

I. The Constitutionality of Out–of–Court Statements of Sexual Abuse

In his first issue, appellant contends that Texas Code of Criminal Procedure article 38.072 violates his constitutional right to confront and cross-examine the witnesses against him under the Confrontation Clause of the United States Constitution and Article I, Section 10 of the Texas Constitution. Therefore, appellant argues, the trial court erred in admitting Officer Carmichael's testimony concerning the complainant's outcry statement that appellant "raped her" by putting his penis in her vagina.

We review a trial judge's decision on the admissibility of evidence for abuse of discretion. Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge abuses his discretion when his decision falls outside the zone of reasonable disagreement. Id.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, "the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Texas Constitution provides a similar guarantee that "[i]n all criminal prosecution the accused ... shall be confronted by the witnesses against him." Tex. Const. art I, § 10. This right extends to "pretrial statements that declarants would reasonably expect to be used prosecutorially." Crawford v. Washington , 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Article 38.072 of the Code of Criminal Procedure, which applies to cases in which the defendant is charged with certain offenses against a child under the age of 14, provides a statutory exception to the rules against hearsay. See Tex. Code Crim. Proc. art. 38.072 ; Sanchez v. State , 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The statute allows a complainant's out-of-court statement to be admitted into evidence so long as that statement is a description of the alleged offense and is "offered into evidence by the first adult the complainant told of the offense." Sanchez , 354 S.W.3d at 484. A complainant's out-of-court statement is commonly referred to as an "outcry" and an adult who testifies about an outcry is commonly known as an "outcry witness." Id.

The trial judge ruled that Officer Carmichael was an outcry witness for purposes of article 38.072 and permitted her to testify about the complainant's outcry. As the statute requires, Barbara also testified at trial. See Tex. Code Crim. Proc. art. 38.072, § 2(b)(1)(C)(3). Barbara testified to what she told the officer and the details of appellant's assault, and she was cross-examined by defense counsel.

Appellant acknowledges that the Court of Criminal Appeals has ruled that article 38.072 does not violate the accused's right to confrontation under either the federal or state constitutions. See Buckley v. State , 786 S.W.2d 357, 360 (Tex. Crim. App. 1990) ; see also Beckham v. State , 29 S.W.3d 148, 152–53 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (citing Buckley and stating that article 38.072 does not violate either the due process guarantee of the United States Constitution or the due course of law provision of the Texas Constitution). Nevertheless, appellant seeks to preserve his argument for possible further review in light of more recent opinions which appellant asserts focus on whether the evidence is testimonial hearsay rather than whether the evidence offered has an "indicia of reliability." See Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; Crawford , 541 U.S. at 68–69, 124 S.Ct. 1354. Appellant argues that the issue should be revisited and the statute found unconstitutional under Crawford and its progeny.

Given the controlling precedent of Buckley , however, we may not consider appellant's arguments. As an intermediate appellate court, we lack the authority to overrule an opinion of the Court of Criminal Appeals. State v. DeLay , 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (citations omitted), aff'd sub. nom. , State v. Colyandro , 233 S.W.3d 870 (Tex. Crim. App. 2007) ; see also Mason v. State , 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) ("When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis."). This is true even when intervening developments arguably undermine previous holdings. See DeLay , 208 S.W.3d at 605–07.

Had there not been controlling precedent, we would still overrule appellant's claim of error because appellant did not timely and specifically object when the State offered Officer Carmichael's testimony concerning the complainant's outcry, either at the article 38.072 hearing or during trial. Generally, to preserve error for appellate review, a party must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1(a) ; Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Preservation of error is a systemic requirement. Darcy v. State , 488 S.W.3d 325, 328 (Tex. Crim. App. 2016). Even constitutional rights may be forfeited if a timely and specific objection is not made. Saldano v. State , 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).

Appellant argues that his complaint may be raised for the first time on appeal because the constitutionality of article 38.072 is a structural error that tainted the entire trial. See Arizona v. Fulminante , 499 U.S. 279, 309–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (explaining that some trial errors are "structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards"). But, a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute. Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Further, a violation of the right to confrontation is an error of constitutional dimension, rather than a structural error, and is subject to a constitutional harm analysis. Langham v. State , 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) ; see Tex. R. App. P. 44.2(a).

Accordingly, appellant has not preserved the issue for review. See Holland v. State , 802 S.W.2d 696, 699–700 (Tex. Crim. App. 1991) ("When the State proffers an out-of-court statement of a child witness pursuant to Article 38.072, ... it is incumbent upon the accused to object on the basis of confrontation...