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Horton v. State

Court of Appeals of Texas, Second District, Fort Worth

May 11, 2017

JAMES ALAN HORTON APPELLANT
v.
THE STATE OF TEXAS STATE

         FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1404769D

          OPINION

          BONNIE SUDDERTH JUSTICE

         In three points, Appellant James Alan Horton appeals his conviction for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). We affirm.

          Background

         Appellant is the father of Andrea, [1] who was twelve years old at the time of the incident that gives rise to the allegations here. After Appellant and Andrea's mother, Jane, divorced in 2009, Andrea and her siblings spent every other weekend at the paternal grandparents' home, where Appellant also lived. When they stayed there, Andrea would often sleep in a bed with Appellant. According to Andrea, her brothers would sleep in other rooms.

         Andrea testified that in January 2015, when she was 12 years old, she awakened to her father's hand rubbing her sexual organ over her clothes. Too scared to do anything, Andrea waited until Appellant stopped-approximately five minutes later, by Andrea's estimation-and then got out of bed and went to the living room, where she fell back to sleep. Andrea estimated that she went to the living room at "around 6:30 or 7:00" that morning.

         According to Andrea, after she awoke that morning and before she told anyone else what had happened, Appellant approached her, apologized, and said he "didn't mean to do it." Later that day Andrea told her grandmother, Kay, what had happened and, according to Andrea, Kay cried and instructed Andrea to "keep [her] distance."

          Kay also testified that Andrea approached her that day, crying, and told her that Appellant had touched her and that it had made Andrea feel "very uncomfortable." According to Kay, she tried to assure Andrea that she should not worry, that she had done the right thing, and that it would be okay. When Kay confronted Appellant about Andrea's accusation, he told her that he had accidentally touched Andrea in his sleep.

         According to Jane, Appellant called her that evening and told her that "he had touched [Andrea] accidentally." Jane immediately met Andrea's grandfather and took possession of Andrea and her siblings. According to Jane, Andrea was crying "hysterically" at the time she picked her up. Kay testified to the contrary, that when Andrea left the house, she did not want to leave and pleaded with Appellant to let her stay. But her grandfather testified that Andrea wanted to go home to her mother.

         Jane called the police that night.

         Appellant took the stand in his own defense and testified that he believed that Andrea had told the truth when she said that he had touched her, but he denied that he had done so intentionally. Appellant claimed that when he went to bed the night before, both Andrea and her brother were in his bed watching a movie. He testified that he fell asleep before the movie ended, and when he woke up around 7:00 that morning, both children were still in his bed. Andrea was lying next to him, and according to Appellant, he reached over and touched her leg and then fell back asleep. A few minutes later, he woke up again when he felt his hand fall off of Andrea's leg. According to Appellant, at that point Andrea "was getting up, and it was pretty quick, " and as she was going to the door, she turned around and looked at him, and "[he] knew something was wrong. [He] could tell." Appellant testified that he noticed that Andrea appeared to be "uncomfortable" with him that morning, and at some point, Kay relayed to him what Andrea had told her about the incident.

         According to Appellant, after his conversation with Kay, he approached Andrea and said, "[Andrea], I just want you to know I'm sorry. It was an accident. I was asleep." Andrea was crying at the time, but she said, "Dad, it's okay." Appellant also admitted that he called Jane that evening and told her what had happened.

         Tarrant County Sheriff's Office Detective Jerome Adams interviewed Jane and Andrea. Afterwards, he arranged for a forensic interview of Andrea. Natalie Davis, investigator for Child Protective Services, conducted the interview while Detective Adams watched it on a closed-circuit T.V. Detective Adams characterized Andrea's demeanor during the interview as "nervous." He observed that "she had her legs folded up" as she sat in the chair but that "once she started talking about the incident, she kind of broke down and started crying." Based on what he heard, Detective Adams thought Andrea "sounded like she was embarrassed."

         Appellant was charged with indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1). The jury found Appellant guilty and sentenced him to two years' confinement.

         Discussion

         In his first point, Appellant argues that the trial court abused its discretion in responding to the jury's request for a rereading of testimony. In his second and third points, Appellant argues that certain court costs imposed in accordance with the code of criminal procedure and the local government code are unconstitutional.

         I. Response to jury note

         During its deliberations, the jury sent several notes to the trial court. The jury's tenth handwritten note stated, "Could we get testimony from [Andrea] and [Appellant] regarding the description of the apology[?] Did either witness The jurors are disputing what [Appellant] apologized for[.]" The court reporter prepared an excerpt of the testimony from these two witnesses that appeared to respond to the jury's inquiry. Appellant takes issue with the trial court's decision to redact certain portions of his testimony before providing the excerpt to the jury. The testimony provided to the jury appears below, except that the lines appearing in strike-through font represent the portions that were excluded by the trial court:

Q. At that time, we're talking about -- let's say 2 o'clock in the afternoon. Had you said anything to [Jane] at that point about what had happened before?
A. No, sir.
Q. After you had a conversation with your mom --
A. And I did that intentionally even though I felt uncomfortable.
Q. Wait for a question, okay?
A. Yes, sir.
Q. After you had a conversation with your mom, did you have a conversation with [Andrea]?
A. Yes, sir.
Q. What did you say to [Andrea]?
A. I said, "[Andrea], I just want you to know, I'm sorry. It was an accident. I ...

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