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Ashton v. State

Court of Appeals of Texas, First District

April 6, 2017


         On Appeal from the 405th District Court Galveston County, Texas Trial Court Case Nos. 13CR3370 and 13CR3371

          Panel consists of Justices Keyes, Higley, and Lloyd.


          Russell Lloyd Justice.

         A jury found appellant, Trenton Avery Ashton, guilty of two charges of aggravated sexual assault of a child younger than fourteen years of age, [1] and the jury assessed his punishment in both cases at thirty-eight years' incarceration, with sentences to run concurrently. In three issues, appellant argues that: (1) the trial judge erred by denying his motion for mistrial after it was revealed during trial that two jurors knew the investigating detective; (2) the trial court erred by failing to instruct the jury in cause number 13CR3370 that it must unanimously find that a single incident of the charged offense was proven beyond a reasonable doubt; and (3) the trial court erred by failing to instruct the jury in cause number 13CR3371 that it must unanimously find that a single incident of the charged offense was proven beyond a reasonable doubt. We affirm the trial court's judgment.

         Facts and Proceedings A. Factual Background

         In 2013, J.W. began babysitting seven-year old J.S. at J.W.'s home four nights a week while the boy's mother worked the night shift. J.W. shared her home with her husband and nephew, as well as her son, appellant.

         J.S.'s mother, the outcry witness, testified that, on November 18, 2013, J.S. told her that appellant "stuck his wee-wee in my butt" and "white stuff came out." He also told her that appellant stuck his "wee-wee" in his mouth and asked him what it tasted like. J.S. told her that he did not like what appellant had done to him because it hurt and it made J.S. cry. J.S. also told her that the incident happened on the third day of her work cycle, which would have been November 14, 2013.

         J.S., who was nine years old and in the fourth grade at the time testified that appellant's mother babysat him when he was in second grade. According to J.S., his mother would drop him off at appellant's home in the afternoon, and then pick him up early the next morning and take him home. When he stayed at appellant's home, J.S. slept on a mattress on the floor of appellant's room. No one else slept in appellant's room.

         J.S. testified that "sometimes" appellant would tell him to pull his pants down and get on the ground. Appellant would then stick his "wee-wee" inside J.S.'s butt, sometimes sticking it in "all the way, " which "felt like it was burning." Appellant would also tell J.S. to put his mouth on appellant's "wee-wee, " and tell him to suck it. J.S. testified that he saw "white stuff" come out of appellant's "wee-wee" on one occasion. J.S. testified that this happened "three or four times." According to J.S., appellant told him that he would give J.S. a dollar if he did not tell anyone about the assaults. Using a doll, J.S. also demonstrated the assault by anal penetration for the jury. J.S. pulled the doll's pants and underwear down and then placed the doll's hands and legs on the ground. Although J.S. acknowledged that his mother had helped him remember a lot of the story, he also testified that he did not talk to anyone about changing his story.

         J.S. received a forensic sexual assault exam on November 19, 2013. The sexual assault nurse examiner (SANE) who examined J.S. testified about the examination and relied upon a four-page report that she had prepared documenting the exam. The report stated in part:

When my baby-sitter isn't around her son, [appellant], puts his wee wee in my butt and then sometimes he makes me taste it. When he puts it all the way in my butt it hurts and it makes me cry. He gives me a dollar and tells me not to tell anybody. He did it to me on Thursday and then again on Friday in the afternoon when I get there.

         The SANE's report noted that the sexual assaults occurred on November 14, 2013 and the afternoon of November 15, 2013. The SANE collected evidence, including various swabs, combings, and the underwear J.S. was wearing during the examination. She found that J.S. had no trauma or injury. The SANE testified, however, that her findings were consistent with a sexual assault, the absence of an injury to the anus is not determinative of whether an assault occurred, and she had "no reason not to believe" what J.S. told her.

         The SANE's supervisor, the clinical director of forensic nursing services, testified that she reviewed the SANE's report. According to the director, penetration of the anus by a male sexual organ does not always cause injury because the anus is an elastic muscle, and something would have to stretch the anus past its capacity in order to tear the tissue. She further testified that the more time that passes between the assault and the examination, the lower the opportunity for the presentation of an injury because of the healing properties of the body. She also testified that no medical test existed that could conclusively prove that penetration had occurred.

         A forensic interviewer with the Child Advocacy Center interviewed J.S. on November 20, 2013. She testified that J.S. was "very descriptive" when he discussed the assaults and that, although he was upset, J.S. answered all of her questions during the interview. She also testified that when she asked J.S. about the position he was in during the assaults, he demonstrated it. The forensic interviewer explained to the jury that J.S. physically put himself in a dog-like position on the floor and then moved back and forth.

         Detective Earl Mendenhall with the Texas City Police Department was assigned to appellant's case. Detective Mendenhall testified that statements were taken from J.S.'s mother, appellant, appellant's mother, appellant's aunt, and appellant's friend over the course of his investigation. He also arranged for J.S. to be interviewed at the Children's Advocacy Center by a specially trained forensic interviewer. Detective Mendenhall testified that he subpoenaed a DNA sample from appellant that was sent to a forensic crime lab. Nothing of evidentiary value, however, was obtained after analysis.

         Appellant gave a voluntary statement to Detective Mendenhall on November 25, 2013. A video of the interview was admitted into evidence and published to the jury. During that interview, appellant repeatedly denied all allegations of sexual misconduct or assault against J.S., telling the detective that he thought of J.S. as a little brother.

         During the interview, Detective Mendenhall told appellant that J.S. had been specific about what appellant did to him. Appellant denied being naked with J.S., having J.S. bend over, ejaculating in front of J.S., putting his penis in J.S.'s mouth, or asking J.S. to lick his semen off of his penis. When the detective asked appellant if J.S. was lying, appellant responded, "Yes, sir."

         When Detective Mendenhall asked appellant if he wanted to tell him about what had transpired with J.S. or to ask any questions, appellant offered his version of events. Appellant explained that J.S.'s allegations might have been prompted by a phone conversation appellant had with his friend on November 12th or 13th that J.S. had overheard. According to appellant, his friend called him on the phone and told him to watch a YouTube video. Appellant said the video dealt with the subject of pedophilia and rape, but was meant to be comical. Appellant watched the video in his bedroom, conversing with his friend while J.S. slept on the floor. Appellant claimed that he initially believed that J.S. was asleep, but at one point, he saw J.S. open one eye. Appellant told J.S. to go back to sleep or he would tell his mother, and J.S. quickly put the cover over his head. Appellant told the detective that he suspected that J.S. may have heard the audio from the YouTube video, as well as appellant speaking to his friend about the video.

         Appellant's friend, however, told the detective that he never had any such conversation with appellant. At trial, appellant's friend testified that he did not have any phone conversations with appellant in November 2013 and that he did not send appellant any Internet links to pedophilia parodies or share any jokes with appellant about men having sex with little boys. He further stated that he had never seen a pedophilia parody and was unfamiliar with what it was.

         After the State rested its case, appellant called three witnesses: his aunt, his mother, and his stepfather. Appellant's aunt testified that she had known J.S.'s mother for almost twenty years, and had known J.S. since he was born. She claimed that J.S. had a big imagination for his age. She testified that she had expressed concern to J.S.'s mother about his previous babysitters because J.S.'s mother did not know these babysitters personally. Appellant's aunt testified that she did not think that J.S. was safe with his prior babysitters because of some of the things J.S. had complained about. Appellant's aunt also testified that she never had any concern with appellant being around her children.

         Appellant's mother, J.W., testified that she began babysitting J.S. after his mother had experienced problems with another babysitter. She claimed that J.S. would be asleep by the time appellant came home each night between 9:00 p.m. and 10:00 p.m. She further testified that she could "hear everything" that happened in the apartment during the night, including when someone was walking around the apartment and everything that occurred in appellant's bedroom. Appellant's mother also claimed that she did not allow appellant to shut the door to his bedroom at night. She further testified that she never had any concern about appellant being around small children. She was shocked by the allegations against him, and did not believe they were true.

         Appellant's stepfather also testified that he could hear what was going on anywhere inside the apartment. Like appellant's mother, appellant's stepfather testified that he never had any concern leaving appellant with a small child, and was shocked by the allegations against his stepson.

         B. Procedural Background

         During voir dire, appellant's counsel posed the following question to the panel:

Is there anybody on this side and I ask you that your family works for the police department or - I'm not talking about your brother's sister's mother's cousin. I'm talking about somebody you talk to.

         Counsel later expanded the inquiry to also include close relatives who work in other law enforcement agencies, such as the FBI.

         Neither appellant's counsel nor anyone else mentioned Detective Mendenhall by name during voir dire. Approximately seventeen panel members responded to defense counsel's inquiry, including Juror No. 6. Juror No. 6 disclosed that his cousin was a lieutenant at the Seabrook Police Department, but he did not mention Detective Mendenhall.

         During a break in Detective Mendenhall's testimony, and outside the presence of the jury, the trial judge informed the parties that he had just learned that the detective knew two of the jurors. The trial judge stated that he understood that the detective knew one juror "apparently fairly well on a personal basis" and the other juror not as well. The trial judge ...

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