




02-10-142-CR REH





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00142-CR
 



Michael Jerrial Ibenyenwa


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
----------
 
FROM Criminal
District Court No. 3 OF Tarrant COUNTY
----------
 
OPINION
ON STATE’S MOTION FOR REHEARING
----------
 
          After
considering the State’s motion for rehearing, we grant the motion; we withdraw
our prior opinion, concurring and dissenting opinion, and judgment of December
15, 2011, and we substitute the following opinion, concurring and dissenting
opinion, and judgment of the same date to clarify the proper disposition of
counts two through five.
          In
three points, appellant Michael Jerrial Ibenyenwa appeals from one conviction
for continuous sexual abuse, two convictions for aggravated sexual assault, and
two convictions for indecency with a child.  He contends (a) that the statute
allowing for the offense of continuous sexual abuse is unconstitutional because
it allows for a conviction upon a nonunanimous jury vote as to the particular offenses
constituting the elements of the crime, (b) that the trial court reversibly
abused its discretion by allowing the entirety of the child complainant’s
interview to be viewed by the jury after the defense’s cross-examination of the
interviewer, and (c) that the aggravated sexual assault and indecency
convictions are barred by double jeopardy.  We affirm in part and reverse in
part.
Constitutionality
of Section 21.02 of the Penal Code
          In
his third point, appellant contends that the continuous sexual abuse statute is
unconstitutional under Article V, section 13 of the Texas Constitution, and the
Sixth Amendment of the United States Constitution as applied to states through
the Fourteenth Amendment, because it violates the jury unanimity requirement
set forth in those provisions.  Appellant challenges the constitutionally of
the statute both facially and as applied.  Appellant raised neither challenge in
the trial court.
          A
facial challenge to the constitutionality of a statute is a forfeitable right, that
is, it may be lost by the “failure to insist upon it by objection, request,
motion, or some other behavior.”  Karenev v. State, 281 S.W.3d 428, 434
(Tex. Crim. App. 2009); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim.
App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262
(1997).  Although the four-judge concurrence in Karenev held that the
requirement that a facial challenge to a statute be preserved is not absolute,
the five-judge majority plainly stated that “[a] facial challenge to the
constitutionality of a statute falls within the third [Marin] category”
and that “a defendant may not raise for the first time on appeal a facial
challenge to the constitutionality of a statute.”  281 S.W.3d at 434.  We are
bound to follow the majority opinion in the absence of language adopting the
concurrence.  Cf. Haynes v. State, 273 S.W.3d 183, 186 (Tex. Crim. App.
2008) (relying on United States Supreme Court authority holding that a majority
opinion is one in which a single rationale enjoys the support of at least five
judges).  Similarly, an “as applied” constitutional challenge is also a
forfeitable right under Marin and must be preserved in the trial court
during or after trial.  Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.
1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 1005 (1995); see also State ex rel. Lykos v. Fine,
330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (holding that as applied challenge
raised in pretrial motion is not sufficient to preserve issue for review).
Accordingly,
we conclude and hold that appellant did not preserve his facial and as applied challenges
to section 21.02 for our review.  See Karenev, 281 S.W.3d at 434;
Curry, 910 S.W.2d at 496; Williams v. State, 305 S.W.3d 886, 893
(Tex. App.––Texarkana 2010, no pet.).
          We
overrule appellant’s third point.
Optional Completeness
          In
his first issue, appellant complains that the trial court abused its discretion
under rules of evidence 107 and 403 by admitting the entirety of the child’s
interview in response to questioning by the defense.
          Rule
107 permits the introduction of previously inadmissible evidence when that
evidence is necessary to fully explain a matter that has been raised by the
adverse party.  Tex. R. Evid. 107; Walters v. State, 247 S.W.3d 204,
217–18 (Tex. Crim. App. 2007).  It is designed to reduce the possibility of the
jury receiving a false impression from hearing only a part of some act,
conversation, or writing.  Walters, 247 S.W.3d at 218.  Rule 107 does
not permit the introduction of other similar, but inadmissible, evidence unless
necessary to explain properly admitted evidence.  Id.  Further, the rule
is not invoked by the mere reference to a document, statement, or act.  Id. 
And rule 107’s scope is limited by rule 403, which permits a trial judge to
exclude otherwise relevant evidence if its unfair prejudicial effect or its
likelihood of confusing the issues substantially outweighs its probative
value.  Id.
          The
State called as a witness Stephanie Nick, a forensic interviewer who
interviewed the child.  Nick did not have her notes regarding the interview,
but she did refresh her memory with a copy of a police report that the
prosecutor represented had the interview “basically . . . transcribed.”[1]  According to
Nick, the child was able to tell her “where it happened, specifically what room
it happened in, who was present, those sorts of things.”  Nick testified that
the child remembered details such as that she was in kindergarten when the acts
started, that her clothes were off, and that “she was asked if it felt good.”[2]  After asking Nick
about the types of sensory details a child might remember, such as whether a
penis was hard or soft or whether anything came out of it, the prosecutor asked
whether the child was able to remember sensory details, and Nick answered
“Yes.”  Nick also testified that the child did not show signs of having been
coached in her answers.  According to Nick, the child identified appellant as
the perpetrator and denied that anyone else had abused her.
On
cross-examination, Nick agreed with defense counsel that she was not supposed
to ask leading questions of the child, and then defense counsel asked her, “So
you wouldn’t consider [the question], ‘Did anything come out of his private’ to
be leading?”  Nick answered, “No.  That’s a yes or no question.”  In addition,
the following exchange occurred:
Q.      During your
interview with [the victim], she didn’t remember what happened the first time
that the alleged incident happened, did she?
 
A.      That’s
correct, she did not.
 
Q.      And she
didn’t remember what happened the last time the alleged incident happened.
 
A.      She gave
details as to what happened the last time.
 
Q.      Didn’t she
initially say, “I don’t remember”?
 
A.      . . . Yes,
she did initially say she did not remember.
 
Q.      Okay.  And
your interview was only eight days after the last incident allegedly occurred.
 
A.      That, I don’t
know.
 
Q.      So you didn’t
know the . . . alleged incident was January 22nd.  That’s in your notes.
 
A.      I don’t have
. . . my handwritten notes aren’t here.  What I do know is that she told me it
happened in January of 2009.  If she gave the exact date in the interview, I
don’t know.
 
Q.      Okay.  She
seemed to have a decent memory, right?
 
A.      Uh-huh.
 
Q.      She
remembered her kindergarten teacher’s name, right?
 
A.      Yes, she did.
 
Q.      She
remembered things around Halloween of the year before, right?
 
A.      Correct.
 
Q.      And she
remembered her mom fixing coworkers’ hair.
 
A.      Yes.
 
Q.      But she
doesn’t remember what happened the first or the last time you initially asked
her.
 
A.      That’s
correct.  She said she did not remember.
Defense
counsel also questioned whether Nick was trained to repeat the child’s answers
during an interview; she said yes, she was so trained, for the purpose of
clarifying and assisting whoever is watching the interview (such as an
investigator) because sometimes the audio is bad.  She denied that the
technique was for the purpose of “reinforc[ing] the same thing over and over
and over with the child.”  Defense counsel asked Nick whether she would be
surprised that she had repeated the child’s answers 124 times during the 37
minute interview, and she answered yes.  In addition, the investigator denied
that she was trained to ask the same question repeatedly if the first answer
was no.  When asked, “So you would be surprised to know you did that numerous
times in your interview?,” the investigator could not recall.[3]
          When
the State redirected, it asked to admit exhibit 34, the recording of the
videotaped interview, into evidence.  Defense counsel objected on grounds that
“our main concern, Judge, is that they are going to now hear a complete 37
minutes of what we spent just asking one or two questions on, maybe two or
three questions on, that . . . those [follow-up] questions can be asked by the
State.”  The State argued that the entire interview was admissible under rule
107 because the defense’s questions gave the impression that the child was
lying and that the interviewer was reinforcing the child’s testimony.  The
defense intimated that it did not mind if the State asked follow-up questions
regarding the interview and the circumstances of the child’s not being able to
recall certain incidents but that the entire interview should not be admitted.
          We
agree with the State that the defense left the impression that Nick had
possibly manipulated the interview by asking repetitive questions even though
she was not supposed to and that she excessively repeated the child’s answers. 
Although the defense argued that the State should just be allowed to ask
follow-up questions, the jury would not have had any yardstick by which to
measure the effect of Nick’s questions and techniques on the child, which
occurred before the child testified at trial, other than by seeing the actual
interview.  See Mick v. State, 256 S.W.3d 828, 830–32 (Tex.
App.––Texarkana 2008, no pet.).  And we cannot agree that the defense’s line of
questioning regarding the interviewer’s techniques was “minimal.”  We conclude
and hold that the trial court did not abuse its discretion by admitting the
interview under rule 107.  Thus, we must further review whether the trial court
abused its discretion by admitting the evidence over appellant’s rule 403
objection.
          Once
an appellant objects on rule 403 grounds, the trial court must weigh the
probative value of the evidence to determine if it is substantially outweighed
by its potential for unfair prejudice.  Santellan v. State, 939 S.W.2d
155, 169 (Tex. Crim. App. 1997); Alami v. State, 333 S.W.3d 881, 889
(Tex. App.––Fort Worth 2011, no pet.).  A rule 403 balancing test includes the
following factors:  (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main issues,
(5) any tendency of the evidence to be given undue weight by a jury that has
not been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate amount
of time or merely repeat evidence already admitted.  Gigliobianco v. State,
210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Alami, 333 S.W.3d at
889.  The rules of evidence favor the admission of relevant evidence and carry
a presumption that relevant evidence is more probative than prejudicial.  Jones
v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied,
522 U.S. 832 (1997).
          The
interview was inherently probative to the issue of whether Nick’s technique
amounted to “coaching” the child and was the only evidence of whether the child
equivocated in the interview.  Although she initially told Nick that she did
not remember what had happened, when asked whether she really did not remember
or whether she just did not want to talk about what had happened, she admitted
that she did not want to talk about what had happened.  Thus, the interview was
inherently probative and necessary for the rule 107 purpose for which it was
admitted.
Moreover,
it was unlikely to distract the jury from the issues in the case.  The child
told the interviewer that appellant put his private in her mouth more than once
but less than five times, that when he did that “clear stuff” came out and it
was salty, that appellant put his private in her private so many times she lost
count, that he touched his private in front of her and made her touch his
private, and that he put his finger inside her private.  She had testified to
these same things previously with most of the same detail with the exception of
four things:  (1) she testified that appellant put his finger on her private
rather than inside, which she said in the interview, (2) she testified that
appellant had put his private on her “butt,” which she did not say in the
interview, (3) in the interview, she said that appellant asked her when he was
doing those things if they felt good, but she did not testify to that at trial,
and (4) in the interview she had said that there were yellow sheets on the
guest room bed at appellant’s mother’s house, but at trial, she testified that
she thought they were white sheets.  The issue of her credibility had been
previously raised by the defense’s cross-examination in which the attorney asked
questions regarding whether the child was happy her mother was living with
appellant and whether she liked being with her aunt and uncle better.[4]  Although the
recorded interview could be viewed as bolstering the child’s credibility
because her answers in the interview were mostly consistent with her testimony
at trial, there were some inconsistencies, which the jury was allowed to
reconcile.  Moreover, that was not the sole purpose for which the DVD interview
was admitted; as a result of the admission of the interview, the jury was
allowed to resolve for itself whether it believed the child had been coached by
Nick, her mother, or someone else.  Finally, the DVD was only about forty
minutes long, so there was little danger of it taking an undue amount of time
from the remainder of the trial.  Accordingly, we conclude and hold that the
trial court did not abuse its discretion by admitting the evidence over
appellant’s rule 403 objection.
          Because
we conclude and hold that the trial court did not abuse its discretion by
admitting the interview under rules 107 and 403, we overrule appellant’s first point.
Double
Jeopardy
          The
State concedes that if we overrule appellant’s first and third points so as to
affirm appellant’s conviction on count one, the continuous sexual abuse count,
we must reverse the remainder of the convictions for aggravated sexual assault
and indecency with a child.  See U.S. Const. amend. V; Tex. Const. art.
I, § 14; Tex. Penal Code Ann. § 21.02(e) (West Supp. 2011).  Accordingly, we sustain
appellant’s second point and vacate those four convictions as set forth below.
Conclusion
          Having
overruled appellant’s first and third points, we affirm his conviction under
count one for continuous sexual abuse.  Having sustained his second point, we vacate
his convictions on counts two through three for aggravated sexual assault and
counts four through five for indecency with a child.  See Tex. R. App.
P. 43.2(c); Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 1674
(1975).
 
 
 
TERRIE LIVINGSTON
CHIEF JUSTICE
 
PANEL:  LIVINGSTON, C.J.; DAUPHINOT, J.; and DIXON
W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).
 
DAUPHINOT, J., filed a concurring and
dissenting opinion.
 
PUBLISH
 
DELIVERED: 
March 22, 2012










 


 
 


















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00142-CR
 
 



Michael Jerrial Ibenyenwa


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
----------
 
FROM Criminal
District Court No. 3 OF Tarrant COUNTY
----------
 
CONCURRING AND
DISSENTING OPINION
ON STATE’S MOTION FOR
REHEARING
----------
 
I
agree with the State and the majority that affirming the conviction on count
one requires vacating the remainder of the convictions.  But because the
majority has borrowed the Karenev majority’s overly broad brush to paint
its analysis in affirming that conviction,[5] I
must respectfully dissent.
I
adopt the Karenev concurring opinion, written by Judge Cochran and
joined by Judges Price, Womack, and Johnson, because it is a clear, concise,
and more artfully drafted explanation of why technicalities should not trump
the Constitution than I am capable of writing:
There
are two good reasons why appellate courts should entertain a facial challenge
to the penal statute setting out the offense for which the defendant was
convicted, even when it is raised for the first time on appeal:
(1)
American law prohibits the conviction and punishment of a person under an
unconstitutional penal statute; in other words, it is an “absolute requirement”
that a person be criminally punished only for the violation of a valid penal
law; and
(2)
Appellate courts are in at least as good a position as trial courts to review
the purely legal question of whether a particular penal statute is facially
unconstitutional.
First,
I do not think that the majority is suggesting that it is quite acceptable to
send someone to prison for violating an unconstitutional penal statute if that
person failed to object to the statute’s unconstitutionality in the trial
court.  But its language could well be misconstrued as allowing persons who are
not guilty of violating any valid penal statute to be punished nonetheless if
they failed to complain soon enough.  The moral of that story would be: 
Because you were a slowpoke at noticing that you were not guilty of any valid
criminal offense, we will punish you as if you really were guilty of some valid
criminal offense.  That is not the American way:  every person has an absolute,
fundamental, and unforfeitable right to be punished only for the violation of a
valid criminal statute.
Second,
the general rationale for requiring an objection in the trial court to preserve
error on appeal simply does not apply when the claim is that the penal statute
is facially unconstitutional and cannot be used to punish any person, now or in
the future.  The two main reasons for requiring a contemporaneous objection in
the trial court are (1) to give the opposing party an opportunity to respond or
cure the problem before it becomes error; and (2) to give the trial judge an
opportunity to prevent the error from occurring.  A third rationale is that “judicial
economy requires that issues be raised first in the trial court to spare the
parties and the public the expense of a potentially unnecessary appeal.”
The
first two rationales do not apply when a penal statute defining the criminal
offense is facially unconstitutional in its entirety.  The statute cannot be
repaired by the parties or the trial judge.  The only two options at the trial
level are to dismiss the charges or proceed with the prosecution.
The
third rationale, conservation of scarce judicial resources, does apply when the
prosecutor or judge agrees with the defendant that the penal statute is
facially unconstitutional, the charges are dismissed, and there is no appeal
from dismissal.  But the likelihood of that occurring is minuscule.  Trial
judges very rarely declare a penal statute unconstitutional; prosecutors would
generally be remiss if they failed to appeal a ruling that a legislatively
enacted penal statute was unconstitutional and therefore unenforceable; and
public policy is best served by a published appellate decision declaring a
penal statute facially unconstitutional and therefore unenforceable against any
person.  Thus, while it is conceivable that requiring a defendant to complain
of a penal statute’s facial unconstitutionality in the trial court might save
some [scarce] judicial resources, that expense is a very small price to pay
when balanced against the bedrock American notion that we do not convict and
punish people for unconstitutional crimes.  Surely this Court would not, after
the Supreme Court’s decision in Lawrence v. Texas, uphold a sodomy
conviction today even though the defendant had not complained in the trial
court about the unconstitutionality of the “still in the books” sodomy statute.[6]
If,
as the majority holds in reliance on the five-judge majority in Karenev,
a person may be convicted of and sentenced to prison for violating a piece of
legislation that is repugnant to the Constitution solely because the trial
lawyer failed to make timely objection, we allow the protections of our Constitution
to be usurped by procedural technicalities.  Is this another issue that cannot
be raised on direct appeal but may be raised by writ of habeas corpus?  Is this
really the way we want to expend the overstretched resources of our judiciary,
which although a branch of government equal to the legislative and the
executive branches,[7] in its entirety is
financed by only .373% of the total state budget?[8]
In
our history, we have made slavery legal, and our courts have upheld laws criminalizing
miscegenation[9] and sodomy.[10]
 Often our communities believed these laws were proper, and lawyers would not
object to their constitutionality because the laws were accepted by the
community of which the lawyer was a member.
What
vehicle for objection does a defendant in a criminal case have for making his
objection to a law he believes to be unconstitutional if his lawyer disagrees
and refuses to object or simply fails to make the objection?  Although the Texas
Constitution provides that “[i]n all criminal prosecutions the accused shall
have . . . the right of being heard by himself or counsel, or both . . .
,”[11] courts
repeatedly deny the accused this right, holding that a defendant is not
entitled to “hybrid representation.”[12] 
The defendant himself can make no objection that will preserve any complaint if
that defendant is represented by counsel who either does not realize there is a
constitutional issue or does not believe that the statute violates constitutional
protections.
While
I agree that a statute that is unconstitutional only as applied to a defendant
requires objection to bring the issue to the attention of the trial court, a
statute that is unconstitutional on its face can only be void and no statute at
all.  Convicting a defendant of violating a void statute would be similar to
convicting a person of an offense that does not appear in our penal statutes. 
Does anyone really believe that it is proper to convict a person of an act that
does not appear in our penal statutes merely because there is no objection?
This
court is bound by the precedent established by the Texas Court of Criminal
Appeals, and the conscientious majority has followed the five-judge majority in
Karenev.  I would hold, as has been the law for many years, that a law
that is facially unconstitutional is void[13] and may be challenged at
trial, on direct appeal, by writ of habeas corpus, or in any other way, regardless
of preservation, especially if the statute has been held to be facially
unconstitutional after the filing of the appellate brief but before the opinion
is handed down.  I agree with the concurring judges in Karenev that 
appellate courts
should entertain a facial challenge to the penal statute setting out the
offense for which the defendant was convicted, even when it is raised for the
first time on appeal: 
(1)
American law prohibits the conviction and punishment of a person under an
unconstitutional penal statute; in other words, it is an “absolute requirement”
that a person be criminally punished only for the violation of a valid penal
law; and
(2)
Appellate courts are in at least as good a position as trial courts to review
the purely legal question of whether a particular penal statute is facially
unconstitutional.[14]
I would
so hold, and because the majority does not, I must respectfully dissent.
 
 
 
LEE ANN DAUPHINOT
JUSTICE
 
PUBLISH
 
DELIVERED:  March 22, 2012




[1]The report was not
admitted into evidence.


[2]Appellant did not object
to this evidence.


[3]The defense had also asked
similar questions of a prior witness, Detective Garth Savage, who had watched
the interview in another room.


[4]At closing, however, the
defense argued to the jury that there was no dispute that the child had been
sexually assaulted, but the issue was by whom.


[5]See Karenev v. State,
281 S.W.3d 428, 432–34 (Tex. Crim. App. 2009).


[6]Id. at 436–40 (Cochran,
J., concurring) (citations omitted).


[7]Tex. Const. art. II,
§ 1.


[8]Conference Comm.,
Report (3rd printing), Tex. H.B. 1, 82nd Leg., R.S. (May 26, 2011), available
at http://www.lbb.state.tx.us/Bill_82/4_Conference/prt
HB1_Conference_2011_SIG_Engross.pdf.
 


[9]See,
e.g., Frasher v. State, 3 Tex. Ct. App. 263, 276–78 (1877)
(upholding former article 386 of our criminal code).
 


[10]Lawrence v. State,
41 S.W.3d 349, 357–59, 362 (Tex. App.—Houston [14th] 2001, pet. ref’d), rev’d,
539 U.S. 558, 578–79, 123 S. Ct. 2472, 2483–84 (2003).


[11]Tex.
Const. art. I, § 10 (emphasis added).


[12]See, e.g., Ex
parte Bohannan, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011).


[13]Reynoldsville Casket
Co. v. Hyde, 514 U.S. 749, 760, 115 S. Ct. 1745, 1752 (1995) (Scalia, J.,
concurring) (“[A] law repugnant to the Constitution is void, and is as no
law.”) (citation and internal quotation marks omitted); Ex parte Yarbrough
(The Ku Klux Klan Cases), 110 U.S. 651, 654, 4 S. Ct. 152, 153 (1884); Ex
parte Siebold, 100 U.S. 371, 375–377 (1879); Ex parte Weise, 55
S.W.3d 617, 620 (Tex. Crim. App. 2001) (stating that a defendant is entitled to
file for pretrial habeas relief when he alleges “that the statute under which
he . . . is prosecuted is unconstitutional on its face; consequently, there is
no valid statute and the charging instrument is void”); Rabb v. State,
730 S.W.2d 751, 752 (Tex. Crim. App. 1987), abrogated by Karenev, 281
S.W.3d at 434.


[14]Karenev, 281 S.W.3d at 436–38
(Cochran, J., concurring) (citations omitted).


