Spikes v. The State Of Tex.

ASHLEY MALONE SPIKES, Appellant

v.THE STATE OF TEXAS, Appellee

NO. 01-09-00410-CR

NO. 01-09-00411-CR

Court of Appeals

For The

First District of Texas

Opinion issued: February 10, 2011

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case Nos. 1197741 and 1197742

MEMORANDUM OPINION

A jury convicted appellant, Ashley Malone Spikes, of the first degree felony offense of aggravated sexual assault of a child and the second degree felonyoffense of indecency with a child.¹ The jury assessed punishment at life imprisonment and twenty years' confinement, respectively, to run concurrently. On appeal, appellant contends that (1) the State presented perjured testimony in violation of ethical rules; (2) application of article 38.072 of the Code of Criminal Procedure violated appellant's confrontation clause rights; (3) the trial court erroneously allowed the State to shift the burden of proof during closing argument; (4) the State violated Brady v. Maryland by failing to disclose the complainant's alleged full recantation of her outcry testimony; (5) the trial court erred in excluding the recording of the complainant's Children's Assessment Center (CAC) interview, during which she partially recanted her outcry; (6) the State failed to present legally sufficient evidence that appellant committed the offenses; (7) the trial court erroneously admitted evidence concerning extraneous bad acts involving appellant and the complainant; and (8) appellant's trial counsel rendered ineffective assistance by failing to seek a limiting instruction regarding the use of the extraneous bad acts evidence in the written charge.

We affirm.

Background

On March 2, 2008, Pamela and Patrick Arnett visited appellant's house for a barbecue dinner. Appellant and Patrick are cousins, and, according to both Arnetts, the two families were close and often spent time together. When the Arnetts arrived, they found appellant in the backyard barbecuing and his wife, Harriet, in the kitchen. Pamela testified that Harriet was smoking a cigarette and drinking wine and that she had a cut under her eye. Appellant and Patrick left to buy some beer for the barbecue, and Pamela talked with Harriet, who was shaking and crying. After appellant and Patrick returned and finished cooking, appellant and Harriet began arguing.

During the argument, appellant and Harriet's four children came into the kitchen to get ready for dinner. After appellant would not let his youngest daughter fix a plate of food, his argument with Harriet escalated and he hit her three times under the eye. Harriet then pulled a knife out of her jacket, and she and appellant struggled over the knife, cutting Harriet's hand in the process. Patrick separated appellant and Harriet, and he and Pamela took Harriet and the children back to their house for the night.

At the Arnetts' house, while Patrick went out to buy dinner, Harriet told Pamela that appellant had sexually abused the complainant, their eleven-year-old daughter, J.S. Later that evening, appellant arrived at the house, and he and Harriettalked in his car for the entire night. The next day, Harriet took the children back to her house. Pamela and Patrick drove over after work to check on Harriet and the children and to discuss what Harriet had told Pamela the previous evening.

Pamela and Patrick spoke with J.S. in the playroom, a converted garage. Pamela testified that the normally cheerful J.S. spoke with her head down and that she was crying. J.S. told the Arnetts that "[her] daddy had been touching [her]." According to Pamela, J.S. stated that the abuse began when J.S. would give appellant "pedicures," during which J.S. would trim appellant's toenails and appellant would place his feet on her lap and wiggle his toes on her "private part." J.S. related that appellant then began touching her breasts under her bra and "tongue kiss[ing]" her. J.S. also stated that appellant twice tried to place the tip of his penis in her vagina, and he successfully penetrated her with his fingers. On one occasion, appellant placed "his private part in [J.S.'s] mouth" and she spit "something white" onto the floor of the playroom, which appellant then cleaned with bleach. J.S. told Pamela that "most of the time," these incidents occurred after J.S. came home from school and before Harriet came home from work. J.S. asked Pamela "why did God let this happen to her," and she told Pamela and Patrick that she wanted to make sure that appellant did not do the same thing to her younger sister.

Pamela and Patrick told Harriet that she needed to contact the police, which Harriet seemed reluctant to do. The next day, Pamela called Harriet and discovered that she still had not contacted the police. While Pamela drove over to their house, J.S. called her and told her that "she did not want [Pamela] to call the cops because her mama and her daddy would get in trouble and who was going to pay their bills[?]" Pamela and J.S. ultimately convinced Harriet to let them call the police. Pamela testified that she had had daily contact with Harriet, but, beginning the day after J.S. called the police, Harriet did not return Pamela's calls. Pamela and Patrick only saw Harriet and the children once after J.S. reported the alleged abuse, and they had previously seen the family on a regular basis.

Harris County Sheriff's Department Deputy C. Anderson responded to J.S.'s call. Deputy Anderson briefly spoke with Harriet, who informed him that J.S. told her that appellant had been sexually assaulting her. Harriet also stated that she believed J.S. J.S. appeared "really open," confident, and calm when she spoke to Deputy Anderson, and she did not cry. J.S. did not provide specific dates for each incident, but instead gave estimates, such as a particular month or year. J.S. took Deputy Anderson around the house to show him where the incidents occurred, and he testified that he could faintly smell bleach in the playroom.

Susan Spjut, a forensic nurse for Memorial-Hermann Hospital, testified that she examined J.S. on March 5, 2008. According to Spjut, J.S. told her the following before the examination:

My father was fondling me since I was very small, since I was 4 or 5. He was, like, playing with me with his hands, my private part, the front. He put his fingers in about midway but not all the way in. When he tried to get in, I'd push him off because I was scared. He kissed me, what they call French-kissing, in the mouth, his tongue. He would stick his hands in my bra and squeeze my breast. He said, "You know you like it." I didn't like it. He told me to promise not to tell anybody. The last time was December 1st, fondling. I made sure I wasn't alone with him after that.

Spjut stated that she did not observe any trauma in the genital examination, but she was not surprised by this finding. She also noted in her records that J.S. was "calm and cooperative" during the exam, and she agreed with the State that this demeanor is "normal for a young girl under those circumstances."

Harris County Sheriff's Department Sergeant J. Fitzgerald works at the Children's Assessment Center (CAC) and was assigned to J.S.'s case shortly after J.S. reported the alleged abuse. Sergeant Fitzgerald observed, via closed-circuit television, the forensic interview of J.S on March 11, 2008. According to Sergeant Fitzgerald, J.S. "recant[ed] on the aggravated sexual assault [allegations]" during the interview, but she "maintain[ed] the indecency" allegations against appellant.

Dr. Michelle Lyn, the medical director for the CAC, testified that she examined J.S. at the CAC on March 11. Dr. Lyn first asked J.S. why she was atthe CAC, and J.S. responded that she was there because "[she] need[s] to get checked to see if [she has] penetration or disease." J.S. further stated that her father "touched [her] on [her] breasts and butt" and that this began when J.S. was five or six years old. When Dr. Lyn asked J.S. what penetration means to her, J.S. responded "touching inside." Dr. Lyn then asked if there was anything else that J.S. wanted to tell her. J.S. told Dr. Lyn that she "wanted to make it clear to [Lyn] that she was lying about penetration. [J.S.] said she was afraid of a false report before the trial." Dr. Lyn testified that this statement was unusual, and that no child had ever said that to her before. Dr. Lyn asked J.S. if she understood the difference between the truth and a lie, and after J.S. responded that she did, Dr. Lyn then asked whether J.S. told the truth or a lie the night she went to the hospital. J.S. responded that she "told Ms. Susan [Spjut] the truth" and she was telling Dr. Lyn the truth—appellant touched her. Dr. Lyn testified that J.S. had normal genitalia, but that this finding did not rule out the occurrence of penetration. According to Dr. Lyn, the best evidence of sexual abuse is the disclosure of the child.

The State indicted appellant for aggravated sexual assault of a child, alleging that appellant penetrated J.S.'s sexual organ with his finger, and indecency with a child, alleging that appellant touched J.S.'s breast. Appellant moved pre-trial for the discovery of exculpatory and mitigating evidence, specifically, the videorecording of J.S.'s CAC forensic interview. Appellant also filed a pre-trial motion in limine, seeking to exclude "all extraneous crime or misconduct evidence," including allegations of sexual contact between appellant and J.S. beyond the two instances alleged in the indictment. The trial court denied this request.

Before opening statements, the trial court held a hearing to determine the appropriate outcry witness. At the hearing, Sergeant Fitzgerald testified that, after he reviewed J.S.'s forensic interview, he spoke with Harriet because he initially believed that she was the outcry witness. When he spoke with her, however, she indicated that J.S. had not told her the details of appellant's conduct. Pamela then testified regarding her conversation with...