Null v. State

640 S.W.3d 370

Alan William NULL, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00839-CR

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

Opinions filed February 24, 2022

Stephen D. Jackson, Conroe, for Appellant.

Zachary Gibson, Houston, for Appellee.

Before the court en banc.

SUBSTITUTE EN BANC MAJORITY OPINION

Meagan Hassan, Justice

A jury found Appellant Alan William Null guilty of sexual assault of a child. After finding true an enhancement for a previous conviction of burglary of a habitation, the jury assessed punishment at imprisonment for 60 years. See Tex. Penal Code Ann. § 22.011(a)(2). On appeal, Appellant raises eleven issues addressing both the guilt/innocence and punishment phases of trial. For the reasons below, we (1) conclude the panel's decision created discord in this Court's decisions concerning expert testimony, (2) conclude the panel's decision concerning judicial notice creates the extraordinary circumstance of violating clearly established due process protections contrary to jurisprudence from the United States Supreme Court, (3) affirm the portion of the trial court's judgment concerning Appellant's conviction, and (4) reverse the portion of the trial court's judgment concerning Appellant's punishment and remand the case to the trial court for a new punishment hearing.

BACKGROUND

Complainant, a sixteen-year-old girl, came home in a confused state early one morning and told her mother that she had just been raped. The mother took Complainant to the hospital, where Complainant was examined by a sexual assault nurse examiner.

Complainant told the nurse that she went out for a jog and was then stopped by a man in a car who had offered her a ride home. Complainant said that she got in the car because the man had sweet-talked her but, rather than take her home, the man drove her to a park, where he used a switchblade to forcibly have sex with her.

After leaving the hospital, Complainant revealed that the jogging story was false. She said that what really happened was that she had skipped school because she was upset over a break up, and she stayed home to drink alcohol while her mother was away at work. She later contacted an adult female friend to join her, and the friend came over to Complainant's house, where they drank more alcohol together.

Before Complainant's mother returned home from work, the friend drove Complainant to her own house, which was less than two miles away. Complainant became intoxicated there and passed out. When she woke up, the hour was late and the friend was asleep. Because Complainant was frantic to get home, she decided to walk home by herself.

Complainant stated that she blacked out on her walk home and that she woke up in an unfamiliar car with someone "pressing" on top of her. She did not get a good look at the other person and said she did not remember much about the incident at all.

A toxicology report showed that Complainant had Xanax and marijuana in her system. Additional forensic analysis found semen in her vagina and underwear.

A few years after the semen sample was collected, Appellant was identified as a possible suspect in the sexual assault. Appellant, who was nearly thirty-eight years old at the time of the sexual assault, consented to providing a buccal swab and, based on a test of that buccal swab, a DNA analyst determined that Appellant could not be excluded as a contributor of the semen sample that had been collected from Complainant.

Appellant was charged with Complainant's sexual assault. He pleaded not guilty to that charge and his case proceeded to a trial by jury. During the trial, Complainant testified that she did not know anyone by Appellant's name and that she never socialized with men in Appellant's age group. She reiterated that she could not remember much about the night in question and she did not identify Appellant in open court as her attacker.

Appellant did not testify in his own defense. After the State rested its case, the jury convicted Appellant as charged. Appellant proceeded to a punishment hearing, in which the jury heard testimony from ten witnesses. After the close of evidence, the jury assessed punishment at 60 years’ confinement. Appellant timely appealed and a divided panel of this court affirmed. A majority of the Court voted to grant en banc reconsideration to maintain the uniformity of our jurisprudence concerning Texas Rule of Evidence 702. See Tex. R. App. P. 41.2(c).

ANALYSIS

Appellant raises eleven issues on appeal challenging (1) the dismissal of jurors during voir dire, (2) evidence admitted during the guilt/innocence phase of trial, (3) the jury charge, (4) the sufficiency of the evidence underlying his conviction, and (5) evidence admitted during the punishment hearing. We take Appellant's issues out of order and begin with his sufficiency challenges (issues four, five, and six) because, if meritorious, they would afford greater relief than the other issues he raises on appeal. See Roberson v. State , 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (en banc) (per curiam) (indicating that rendition points should be addressed before remand points).

I. Sufficiency of the Evidence

In a sufficiency challenge, a reviewing court must determine whether a rational trier of fact could have found the essential elements of an offense beyond a reasonable doubt. See Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). When deciding whether the prosecution satisfied this burden, we consider all of the evidence in the light most favorable to the verdict. See Zuniga v. State , 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).

A. Sexual Assault of a Child

In his fourth issue, Appellant contends "[t]here was insufficient evidence to convict as the State failed to prove that there was penetration."

The offense here was sexual assault of a child, which meant that the prosecution had the burden of proving the following essential elements: (1) Appellant intentionally or knowingly caused the penetration of the Complainant's sexual organ, and (2) Complainant was younger than seventeen years of age at the time of the penetration. See Tex. Penal Code Ann. § 22.011(a)(2)(A), (c)(1).

The jury reasonably could have found that Appellant intentionally or knowingly penetrated Complainant's sexual organ because there was evidence that his semen was collected from Complainant's vaginal swab. The jury could have likewise determined that Complainant was younger than seventeen years of age at the time of the offense because her mother testified that Complainant was sixteen when the incident happened.

Appellant counters that the evidence of penetration is insufficient because the in-court testimony from Complainant "is completely devoid of any sexual act." Appellant correctly observes that Complainant testified during the trial that she did not remember much about the incident. Indeed, she did not provide many details at all about the sexual assault. However, just after the assault occurred, Complainant told her mother that she had been raped, and the mother repeated that statement in front of the jury. Also, Complainant told the sexual assault nurse examiner that the man who attacked her had "put his penis in her vagina." That statement was recorded in the nurse's notes, which were admitted for the jury's consideration. Together, these statements provided the jury with a substantial basis for finding that penetration occurred. See, e.g., Adams v. State , 502 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (nurse's testimony that the complainant told her she had performed oral sex on the appellant was sufficient to support the appellant's conviction even though the complainant testified she "could not remember everything that occurred that night and ... could not remember performing oral sex on appellant").

Based on the foregoing, we conclude that there was legally sufficient evidence from which the jury could have found every essential element of the offense beyond a reasonable doubt.

We overrule Appellant's fourth issue.

B. Venue

In his fifth issue, Appellant argues that "[t]here was insufficient evidence to convict as the State failed to prove that the offense occurred in Harris County, Texas."

The evidence at trial showed that Complainant lived in the city of Jersey Village, which is located within Harris County, and that her adult female friend lived less than two miles to the east in the City of Houston. The evidence did not establish where the sexual assault occurred and, absent such evidence, Appellant contends that the prosecution failed to prove that venue was proper in Harris County.

Venue is not an element of the offense, which means that the prosecution is not required to prove it beyond a reasonable doubt. See Schmutz v. State , 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). The prosecution must only establish that venue is proper by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 13.17. We presume that the prosecution satisfied that burden unless venue was disputed in the trial court or the record affirmatively shows that venue was improper. See Tex. R. App. P. 44.2(c)(1).

Here, Appellant did not dispute venue during the trial, and he concedes on appeal that he did not produce any evidence affirmatively showing that venue would have been proper in a different county. Therefore, we presume on this record that the prosecution satisfied its burden of showing by a preponderance of the evidence that the proper venue was in Harris County. See, e.g., Williams v. State , 356 S.W.3d 508, 518-19 (Tex. App.—Texarkana 2011, pet. ref'd) (overruling the appellant's venue challenge on appeal when the appellant "did not challenge venue in the trial court and the record does not affirmatively show that venue [did] not exist").

We overrule Appellant's fifth issue.

C. Spouse

In his sixth issue, Appellant contends the State failed to prove that Complainant was not his spouse.

The prosecution alleged in both the indictment and the...