Pastrano v. State (Tex.App.- Austin, Feb. 7, 2008)

John Pastrano v. The State of Texas--Appeal from 22nd District Court of Hays CountyAFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-04-793, HONORABLE GARY L. STEEL, JUDGE PRESIDING

O P I N I O N

Following a bench trial, appellant John Pastrano was adjudged guilty of engaging in improper sexual activity with a person in custody. The court assessed appellant's punishment at two years in state jail, suspended imposition of sentence, and placed appellant on community supervision for three years. In his only point of error, appellant urges that the evidence is legally insufficient to support the conviction. We find this contention to be without merit and affirm the conviction.

The indictment in this case alleged that on or about September 10, 2004, appellant:
intentionally engage[d] in sexual contact with [H.C.], who was then and there in custody, by touching the said [H.C.]'s breast with his hand with intent to arouse or gratify the Defendant's sexual desire, and the said Defendant was then and there a peace officer employed by the Hays County Sheriff's Department.

This indictment alleged an offense under penal code section 39.04(a)(2), which, at the time, provided that it was an offense for an official, employee, or volunteer at a correctional facility or for a peace officer to intentionally "engage[] in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody." Act of May 23, 2001, 77th Leg., R.S., ch. 1070, § 1, 2001 Tex. Gen. Laws 2359 (amended 2007) (current version at Tex. Penal Code Ann. § 39.04(a)(2) (West Supp. 2007)). (1) No witnesses testified at appellant's trial. Instead, appellant and the State stipulated to the following facts:

1. On or about September 10, 2004, I, John Pastrano, was a peace officer employed as a deputy sheriff by the Hays County Sheriff's Department.
2. On that same date, under my authority as a peace officer, I, John Pastrano detained the same [H.C.] named in the indictment in this case, pursuant to a traffic stop.
3. During the period of time that [H.C.] was detained by me, I, John Pastrano touched [H.C.]'s breast with my hand, with the intent to arouse or gratify my sexual desire.
4. All of the facts recited above relate to events which occurred in Hays County, Texas.
5. [H.C.] was at no time on September 10, 2004, arrested for, confined for, or convicted of any offense.

In the context of this case, the elements of the offense defined in section 39.04(a)(2) are: (1) a peace officer, (2) intentionally, (3) engages in sexual contact, and (4) with an individual in custody. Appellant stipulated that he was a peace officer and that he touched H.C.'s breast with the intent to arouse or gratify his sexual desire, satisfying the first three elements. Appellant's challenge to the sufficiency of the evidence is directed to the fourth element of the offense.
The penal code defines "individual" as a living human being. Tex. Penal Code Ann. § 1.07(a)(26) (West Supp. 2007). Section 39.04 defines "custody" as "the detention, arrest, or confinement of an adult offender or the detention or the commitment of a juvenile offender to a facility operated by or under a contract with the Texas Youth Commission or a facility operated by or under a contract with a juvenile board." Id. § 39.04(e)(2) (West Supp. 2007). A person is detained within the meaning of section 39.04 if, from her perspective, there was such a display of official authority that a reasonable person would think that she is not free to leave. Dickson v. State, 144 S.W.3d 61, 63 (Tex. App.--Fort Worth 2004, pet. ref'd).
It is undisputed that H.C. was an individual, and appellant stipulated that she was detained and hence in custody. Nevertheless, appellant argues that under section 39.04(e)(2), the State must prove that the complaining witness was an "adult offender" or a "juvenile offender." He notes that the statute originally defined "custody" as "the detention, arrest, or confinement of a person." Act of May 24, 1997, 75th Leg., R.S., ch. 1406, § 1, 1997 Tex. Gen. Laws 5265, 5266. In 1999, the legislature amended the definition to read substantially as it does today. Act of May 10, 1999, 76th Leg., R.S., ch. 158, § 1, 1999 Tex. Gen. Laws 630, 631. (2) Appellant argues that the 1999 amendment had the effect of narrowing the application of section 39.04 with respect to those who are protected against a peace officer's sexual behavior. Appellant contends that under the present definition of "custody," evidence that a peace officer engaged in sexual contact with a detained person is not sufficient to establish an offense under section 39.04(a)(2). Rather, he urges that the State must prove that the detainee was either an "adult offender" or a "juvenile offender." In other words, although section 39.04(a)(2) says that it is unlawful for a peace officer to engage in sexual contact with an individual in custody, appellant argues that the statute must be read to prohibit sexual contact only with an "adult offender" or a "juvenile offender" in custody. Acknowledging that these terms are nowhere defined, appellant suggests that an adult is someone seventeen years of age or older, and that an offender is someone who has committed an offense, or who has been accused of, arrested for, or formally charged with an offense. He asserts that someone who has merely been detained on reasonable suspicion is not an "offender" within the meaning of section 39.04(e)(2).
The stipulated facts are silent with respect to H.C.'s age. Moreover, it was stipulated that H.C. had been detained for a suspected traffic offense, but that she had not been arrested, confined, or convicted. Therefore, appellant argues, the stipulated facts fail to establish that H.C. was an "adult offender" (or, for that matter, a "juvenile offender"), and for that reason the evidence is legally insufficient to sustain his conviction. Although appellant's argument is based on the statutory definition of "custody," he does not contend that the evidence is insufficient in that respect.
In construing a statute, we generally focus on the text because it is the only definitive evidence of what the legislators had in mind when the statute was enacted. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We may consider extratextual factors, however, if the statutory language is ambiguous, or if the plain language of the statute would lead to an absurd result the legislature could not possibly have intended. Id. We believe that the terms "adult offender" and "juvenile offender" are ambiguous on their face. See State v. Neesley, No. PD-1396-06, 2007 Tex. Crim. App. LEXIS 1560, at *7 (Tex. Crim. App. Nov. 7, 2007) (stating that ambiguity exists when statute is capable of being understood by reasonably well-informed persons in two or more different senses).
In common usage, an offender is a person who has offended against the law. See Tex. Gov't Code Ann. § 311.011(a) (West 2005) (words shall be construed according to common usage). Therefore, must a person be in custody following a criminal conviction to be an "offender" within the meaning of section 39.04(e)(2)? That interpretation of the statute is foreclosed by the language of subsection (e)(2) itself, which refers to the "detention, arrest, or confinement" of offenders. Detention and arrest precede conviction, and confinement can do so as well. If subsection (e)(2) does not require proof of a conviction, does it at least require proof that the person in custody was guilty of the offense, as appellant suggests? That would mean that the legislature intended to prohibit peace officers from engaging in sexual activity with individuals who are guilty of the offense for which they are in custody, but did not intend to prohibit sexual activity with individuals who are in custody but innocent. That is a distinction and a result that the legislature could not reasonably have intended. Alternatively, appellant proposes that an "offender" is a person who has been arrested for or accused of a crime, but arrest and accusation are not evidence of guilt. And if, as appellant argues, a presumptively innocent person is an "offender" when arrested, why is that person not an "offender" when detained, and why does subsection (e)(2) refer to detained offenders? Finally, is there any evidence in the statutory history to support appellant's implicit assertion that in defining "custody," the legislature also intended to define "individual"?
To resolve this ambiguity, we must consider the language and history of section 39.04 in its entirety, and the object sought to be attained by the 1999 amendment. See id. § 311.023 (statute construction aids). As added to section 39.04 by amendment in 1997, subsection (a)(2) prohibited an "official or employee of a correctional facility or a peace officer" from engaging in sexual activity with an individual in custody. Act of May 24, 1997, 75th Leg., R.S., ch. 1406, § 1, 1997 Tex. Gen. Laws 5265, 5266. (3) The only applicable definition of "correctional facility" was that found in penal code section 1.07(a)(14), which defines the term as "a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense." Tex. Penal Code Ann. § 1.07(a)(14) (West Supp. 2007). Because juveniles cannot be arrested for, charged with, or convicted of a criminal offense, a "correctional facility" within the meaning of section 1.07(a)(14) is an adult correctional facility. Thus, section 39.04(a)(2) as originally enacted applied only to officials and employees of adult correctional facilities.
In 1999, the legislature amended section 39.04 to add a special definition of "correctional facility" that includes both adult and juvenile facilities, thereby extending the application of the statute to officials and employees of juvenile correctional facilities. Act of May 10, 1999, 76th Leg., R.S., ch. 158, § 1, 1999 Tex. Gen. Laws 630, 631 (found at Tex. Penal Code Ann. § 39.04(e)(1) (West Supp. 2007)). By the same act, the legislature also amended the definition of "custody" to refer to "adult offenders" and "juvenile offenders." Id. Considering the 1999 amendments as a whole, we conclude that the definition of "custody" was amended to reflect the broader application of the statute intended by the other 1999 amendments. Section 39.04(e)(2) distinguishes between adults and juveniles because custody can take different forms for adults and juveniles. For example, as a matter of law, only adults can be arrested. See Tex. Fam. Code Ann. § 52.01(b) (West Supp. 2007) ("The taking of a child into custody is not an arrest . . . ."). On the other hand, only juveniles can be committed to a juvenile facility. The term "offender" is more problematic, but we conclude that the legislature used this term because the conduct with which section 39.04 is concerned most often (but not always) takes place in a correctional facility and involves individuals who are, in fact, convicted offenders. However, there is nothing in the history of section 39.04 or in the plain language of subsection (e)(2) to suggest that the legislature intended the terms "adult offender" and "juvenile offender" to define or limit the meaning of "individual" in subsection (a)(2).
Section 39.04(a)(2) unambiguously prohibits a peace officer from engaging in sexual contact with an individual in custody. Under section 39.04(e)(2), both adults and juveniles are deemed to be in custody when they are detained. Appellant stipulated that H.C. was detained. Therefore, to require the State to prove H.C.'s age would be to require proof of a fact that is irrelevant to the offense, an absurd result that the legislature could not have intended. (4) See Boykin, 818 S.W.2d at 785. To require proof that H.C. was an "offender" as appellant defines the term--that is, to require proof that H.C. was guilty of the traffic offense for which she was detained or, alternatively, to require proof that she had been arrested for, confined for, or convicted of the offense--would deny her the protection of the statute even though, by appellant's own admission, H.C. was in custody when he intentionally touched her breast for his sexual gratification.
In light of the history and text of section 39.04 as a whole, we are convinced that the legislature intended to prohibit a peace officer from engaging in sexual contact with any individual in the officer's custody, adult or juvenile, guilty or innocent, and that the legislature did not intend to excuse such conduct if the individual is thereafter released from custody without being accused of a crime. We hold that the stipulated facts are legally sufficient to sustain appellant's conviction for violating section 39.04(a)(2).
The point of error is overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: February 7, 2008
Publish
1. The applicable definitions of "sexual contact," "sexual intercourse," and "deviant sexual intercourse" are those found in penal code section 21.01. Tex. Penal Code Ann. § 39.04(e)(3) (West Supp. 2007); see id. § 21.01.
2. The current definition was adopted in 2001. Act of May 24, 2001, 77th Leg., R.S., ch. 1297, § 69, 2001 Tex. Gen. Laws 3142, 3174.
3. Prior to this amendment, the statute prohibited violations of the civil rights of persons in custody. That prohibition remains in the statute as subsection (a)(1). Tex. Penal Code Ann. § 39.04(a)(1) (West Supp. 2007).
4. In 2007, the legislature amended section 39.04 to provide that an offense under subsection (a)(2) is a second degree felony, rather than a state jail felony, if the victim was a juvenile in the custody of the Texas Youth Commission or of a correctional facility financed primarily with state funds. Act of May 18, 2007, 80th Leg., R.S., ch. 263, § 62, 2007 Tex. Sess. Laws 422, 446; Act of May 22, 2007, 80th Leg., R.S., ch. 378, § 3, 2007 Tex. Sess. Laws 681, 682. For offenses committed after the effective date of this amendment, the distinction between adults and juveniles will sometimes be relevant to the punishment for a violation of subsection (a)(2).

8-year jail sentence on molestation conviction affirmed

AFFIRMED: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)

Thomas Aleshire v. The State of Texas--Appeal from 331st District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-06-900220, HONORABLE FRED A. MOORE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Thomas Aleshire guilty of indecency with a child by contact and assessed his punishment at eight years' imprisonment. See Tex. Penal Code Ann. § 21.11 (West 2003). In his only point of error, appellant contends that the evidence is factually insufficient to sustain the guilty verdict. We find the evidence to be sufficient and affirm the judgment of conviction.
When there is a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a factual sufficiency review, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). Due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence, and the reviewing court may disagree with the result only to prevent a manifest injustice. Johnson, 23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be deemed factually insufficient if the evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.
In September 2005, the complainant, C.A., who was then nine years old, was living in the Salvation Army family dorm with her mother and younger sister. There, they met and befriended appellant and his son, who were also living in the dorm. Eventually, both families left the dorm and, by February 2006, they were sharing a three bedroom duplex apartment. C.A. and her sister slept in one bedroom, their mother slept in another bedroom, and appellant and his son shared the third bedroom. C.A.'s mother was employed, and she generally returned home at around 7:30 in the evening. Appellant, who was recovering from surgery and walked with the aid of a cane, stayed at the apartment, watched the children after school, and prepared dinner.
On the afternoon of February 13, appellant walked with C.A. and her sister to a nearby convenience store so the girls could buy an after-school snack. C.A. testified that she had had a bad day at school; she had failed a spelling test and had disliked lunch. She and appellant began to argue as they walked home. C.A. could not remember the reason for the argument, but she said that it was probably about the mess in her room. When they got back to the apartment, appellant did not allow C.A. to eat her snack and ordered her to go to her room to "think about what I did."
C.A. and her sister had bunk beds. C.A. slept in the upper bunk, and she was sitting there when appellant entered the room. Appellant told C.A. that she should not argue with adults. C.A. testified that after they finished talking, appellant "lifted up my shirt and he put his mouth on my private." She explained that she was referring to her breast. After doing this, appellant told C.A. that she could eat her ice cream and left the room.
C.A.'s mother testified that when she got home from work that day, C.A. asked to speak with her privately. C.A. was unable to tell to her mother about the incident orally, so she wrote a note describing what appellant had done. C.A.'s mother suggested to C.A. that it might have been an accident; that perhaps appellant had meant merely to blow a "raspberry" on C.A.'s stomach. But, she testified, "[C.A.] said she was certain. And she showed me on my arm what it was that he had did specifically." She said that C.A. "put her mouth on my arm and made a suckling motion." C.A.'s mother slept that night on the floor of her daughters' bedroom, and she called the police the following morning after taking the girls to school.
Shana Hill, a Child Protective Services investigator, testified that she went to the apartment on February 15 to speak to C.A.'s mother. Appellant approached her outside the apartment, and she told him that she was there to investigate the allegation that he had sexually abused C.A. Appellant told Hill that "he should be able to confront the child face to face." Hill told appellant that this "was not a good idea." Appellant waited outside while Hill spoke to C.A.'s mother inside the apartment. Later, after appellant refused to leave the apartment, Hill took C.A. and her mother and sister to a shelter to spend the night.
Kiara Alvarez, a forensic interviewer at the Center for Child Protection, testified that she interviewed C.A. at the center on February 22. In addition to recounting the incident on February 13, C.A. told Alvarez that appellant had often touched and rubbed her breast when tucking her into bed at night. C.A. told Alvarez that she had spoken to her mother about this, but her mother testified that this was the first time she had heard of it. The court instructed the jury to consider this testimony for the limited purposes allowed by article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2007).
Austin Police Officer William Dupre testified that he interviewed appellant at the police station, and a videotape of this interview was introduced in evidence. Dupre described appellant as "very polite and very cooperative. He showed up on time even though he had some physical ailments. And he was very straightforward." During his interview with Dupre, appellant denied the allegations made against him. Dupre also went to the apartment and measured the bunk beds. The upper bunk was sixty-four inches high. Appellant is six feet, five inches tall, and Dupre was of the opinion that he was tall enough to have placed his mouth on C.A.'s breast as he stood by the bed and she sat in the upper bunk.
The State's final witness was Dr. William Carter, a psychologist in private practice with expertise in the area of child sexual abuse. Carter described what he referred to as the "process" of child sexual abuse, beginning with selection of the victim by the perpetrator and ending with the victim's outcry. Carter, who had not spoken to C.A., was asked a series of hypothetical questions based on the facts of this case and explained how these facts fit into his theory of the child sexual abuse process.
Carter also described the factors that he considered in determining the validity of a child's outcry. These factors included: whether the child volunteered the information or was responding to questions from an adult; whether the details related in the outcry are consistent with what normally occurs in sexual abuse; the child's emotional affect; whether the child's account remains fundamentally consistent over time; and whether the child has a motive to fabricate.
The defense called no witnesses. In his argument, defense counsel reminded the jurors that they had heard from appellant in the form of his videotaped statement to the police.
Appellant argues that C.A.'s trial testimony did not satisfy Carter's validity standards. He notes that she testified on direct examination that her mother arrived home at the usual time on February 13, around 7:30 P.M., and that she immediately spoke to her mother about the alleged incident. On cross-examination, however, C.A. said that her mother got home early that day, around 5:00 p.m., and that she did not speak to her mother about the incident until after they ate dinner. Appellant also notes that C.A. admitted that she did not particularly like appellant, and that she had argued with him a few hours before making her outcry. The State responds that the inconsistencies in C.A.'s testimony involved unimportant details, and that C.A.'s description of appellant's abusive behavior remained consistent. The State also points out that C.A. volunteered her outcry without any prompting from her mother, who testified that she had always trusted appellant.
Appellant also claims that it was physically impossible for him to have placed his mouth on C.A.'s breast as she described. According to C.A.'s testimony, she was sitting in the upper bunk with her back to the wall when the act took place. Appellant claims, without citation to record evidence, that C.A.'s torso would have been two or three feet behind the front edge of the bed, which the evidence showed was sixty-four inches from the floor. Appellant asserts that he would have had to have been over seven feet tall to have placed his mouth on C.A.'s breast while standing beside the bed, and that it was physically impossible for him to have used the bunk bed's ladder to get closer to C.A. The State responds by pointing to the investigating officer's testimony that he had determined that it was possible for appellant to have touched C.A. in the manner she described.
It was the jury's duty to determine the credibility of C.A.'s testimony and its weight relative to the other evidence. This Court must defer to the jury's determination, and we may not order a new trial merely because we might disagree with the verdict. Watson, 204 S.W.3d at 414. Viewing all the evidence in a neutral light, we do not find the State's evidence to be so weak as to make the guilty verdict clearly wrong or manifestly unjust, nor do find the jury's verdict to be against the great weight and preponderance of the contrary evidence or factors cited by appellant. See id. at 414-15. We therefore overrule appellant's challenge to the factual sufficiency of the evidence.
The judgment of conviction is affirmed.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 31, 2008
Do Not Publish

Indecency conviction affirmed

AFFIRMED: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)

John William Ussery v. The State of Texas
Appeal from 277th District Court of Williamson County

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 05-264-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

John William Ussery was charged with a three-count indictment alleging indecency with a child by contact. See Tex. Penal Code Ann. § 21.11 (West 2003). A jury found him guilty on each of the counts and assessed punishment at twenty years' confinement. The trial court sentenced appellant to twenty years on each count and ordered his sentence in count two to run consecutively to his sentence in count one and his sentence in count three to run concurrently. In five points of error on appeal, appellant challenges (i) the trial court's dismissal of a juror, (ii) the admission of illegally seized evidence and the court's failure to properly instruct the jury with regard to the evidence, and (iii) the trial court's failure to allow a hearing on appellant's motion for a new trial. For the reasons that follow, we affirm the judgment.
The evidence at trial showed that in the spring of 2004, fourteen-year-old T.G. was living with her grandparents who were her legal guardians. In pursuing her hobby of horse riding, she met appellant, a 60-year-old horse trainer, at a horse show at the Georgetown show barn. Shortly after meeting, appellant and T.G. began to exchange e-mails which became sexually suggestive and then sexually explicit. They also engaged in telephone conversations.
On one occasion, when her grandparents were not at home, appellant came to the house and engaged in sexual conduct with T.G. On another occasion, T.G. visited appellant at his horse trailer parked outside the show barn where they engaged in sexual conduct. Lester Garner, T.G.'s grandfather and legal guardian, began to suspect appellant was engaging in improper conduct with his granddaughter. He began to record T.G.'s telephone calls and arranged for his wife to install spyware software on the family computer to monitor T.G.'s e-mail communications with appellant. At trial, appellant objected to the admission of the recorded telephone conversations and e-mails on the basis that they were illegally intercepted by Mr. Garner.
Because there is no challenge to the legal and factual sufficiency of the evidence, we will discuss the relevant facts more fully when addressing the particular legal issue raised.
ANALYSIS
Juror Dismissal
In his first two points of error, appellant challenges the trial court's dismissal of a juror as disabled. He urges that the trial court erred in dismissing the juror and that the trial court committed structural error because the juror's removal reduced the State's burden of proof by allowing a conviction by eleven jurors.
At the beginning of the second day of the trial, Juror Florence informed the trial court in chambers on the record that she knew one of appellant's family members and that "I feel sick to my stomach that's all." She advised the court that she was close friends with appellant's wife's brother and sister-in-law. Because she knew of appellant only by the nickname of his initials, J.W., she had not made a connection during jury selection that he was related to her friend, the sister-in-law, with whom she communicated on a daily basis. The friend informed Juror Florence that she had seen news of the trial on the television news and that the juror was probably serving on her relative's jury. The juror and her friend did not discuss the case. In response to the trial court's questioning, Juror Florence told the judge that, despite her feelings of unease caused by her friendship with appellant's sister-in-law, she could remain fair and unbiased as a juror in appellant's case.
The trial court informed the parties of his conversation with Juror Florence. The State first suggested that, unless the juror was "emotionally unable" to serve, they continue with the jury as constituted. Appellant requested a mistrial, stating "I do not want to take the chance that this will adversely affect her and by adversely affecting her, it will adversely affect the fairness of this trial." The trial court then explained that the "first remedy" was a consideration of whether the juror should be dismissed and the case proceed with the eleven remaining jurors or whether the juror be left on the jury and the case proceed: "[T]he sequence we do these in is do we remove the juror, and then we deal with the mistrial." Defense counsel then requested that the juror be dismissed. The trial court granted the request and dismissed the juror, stating:
Based upon the entirety of my conversation with her, including the flushed face that she had when she came in, the fact that she said she was sick to the stomach--to her stomach, and despite the fact that I feel like I was able to calm her down and get her to relax, she clearly was upset about this. She clearly had had a difficult night. And all that seemed to me to be unrelated to the facts of the case and to be related to the fact that this had been bothering her and at this time, I'm going to find that she is a disabled juror. We could develop the record more if y'all want to, but since you've already agreed--the defense has asked that she be removed and the State has agreed, I don't know if that's what we should do at this point or it would be appropriate.
The following colloquy then occurred:
[Prosecutor]: Yeah, Judge. If they request it and we agree, I don't think you need to develop the record any further.
[Defense Counsel]: I think that's right, Your Honor.
Court: All right. I will remove her on a finding that she's a disabled juror and on the agreement of the--or the request of the defense and the agreement of the State.
Defense counsel renewed his request for mistrial and objected to "being forced to continue with 11 jurors." The court overruled the motion for mistrial.
The United States Constitution does not require a particular number of jurors necessary to constitute a jury panel, only that the jury must be impartial. U.S. Const. amend. VI. The Texas Constitution, however, does require a jury of twelve members for cases tried in district courts, but provision is made for the legislature to modify the rule to authorize verdicts by less than twelve. Sneed v. State, 209 S.W.3d 782, 785 (Tex. App.--Texarkana 2006, pet. ref'd), cert. denied, 128 S. Ct. 537, 2007 U.S. LEXIS 11986 (2007); Hegar v. State, 11 S.W.3d 290, 295 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (citing Tex. Const. art. V, § 13). Article 36.29 of the code of criminal procedure speaks to a juror becoming disabled:
(a) Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman. Except as provided in Subsection (b), however, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.
Tex. Code Crim. Proc. Ann. art. 36.29 (West Supp. 2007). (1)
Appellant contends that a juror's bias or prejudice for or against a defendant does not render a juror "disabled" and that the juror's "comments and indirect knowledge of appellant would not have been sufficient to sustain a challenge for cause to her fitness to sit as a juror" in the case and she was, therefore, not disabled. But appellant did not assert in the court below that the juror was not disabled. In the trial court, appellant argued that a mistrial was the appropriate remedy and that he should not be compelled to continue the trial with only eleven jurors.
A complaint must be properly preserved before it can be presented on appeal. Tex. R. App. P. 33.1. The record must show that the complaint was timely presented to the trial court, that the defendant stated the grounds for the objection with sufficient specificity to make the trial court aware of the complaint or that the specific grounds were apparent from the context, and that the trial court ruled on the objection. Id. A general or insufficiently specific objection does not preserve an error for appeal. Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990).
This case is similar to Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003), in which the defendant first requested a mistrial but, after the trial court denied the request, then proposed the dismissal of the juror in question. The trial court excused the juror. On appeal, the defendant argued that the trial court erred in dismissing the juror under article 36.29. Jones contended that the remedy of discharge was inappropriate because bias is not a disability under article 36.29. Id. at 784.
The court of criminal appeals concluded in Jones that, because appellant requested the discharge as an alternative to mistrial, he was estopped from complaining about it:
Appellant had the option of contending at trial that mistrial was the sole legal and appropriate remedy, and he could have declined to suggest or support any alternatives. By proposing alternatives he is estopped from complaining on appeal about the judge having accepted one of them. Parties are often faced with difficult choices, but facing a tough dilemma does not create a claim or excuse a party for the option chosen.
Id.
In this case, appellant initially requested a mistrial but, after the trial court failed to grant his request, requested the dismissal of the juror. Appellant asked that the juror be dismissed as an alternative to mistrial, and then appellant agreed that the parties need not develop the record further to make any additional showing as to disability. The trial court proceeded to make a finding that the juror was disabled under article 36.29. We conclude that appellant is estopped from complaining about continuing the trial with eleven jurors and that the trial court was within its discretion in finding the juror disabled within the meaning of article 36.29. We overrule appellant's first and second points of error.
Admissibility of Wire and Electronic Communications
1. Vicarious Consent
In his third point of error, appellant contends that the communications intercepted by the Garners were obtained in violation of the statute barring the interception of nonconsensual communications, see Tex. Penal Code Ann. § 16.02 (West Supp. 2007), (2) and should have been excluded pursuant to article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). We review a trial court's decision to admit evidence subject to an abuse of discretion standard of review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). We do not disturb its ruling on appeal unless it falls outside the "zone of reasonable disagreement." Id.
Article 38.23(a) of the code of criminal procedure specifies that "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. Ann. art. 38.23(a). The penal code addresses the unlawful interception of communications, stating that a person commits an offense if he intentionally intercepts a wire or electronic communication. Tex. Penal Code Ann. § 16.02(b)(1). The statute lists various affirmative defenses to prosecution under section 16.02(b), including the following:
It is an affirmative defense to prosecution under Subsection (b) that:
. . . .
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if:
(A) the person is a party to the communication; or
(B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act.
Id. § 16.02(c)(4). The statute does not specify that consent can be given vicariously by a parent or guardian.
In Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007), the court of criminal appeals upheld the conviction of a defendant convicted of aggravated sexual assault. At trial, the State offered, and the trial court admitted, a recorded telephone conversation between the defendant and the twelve-year-old victim. The telephone conversation had been recorded by the victim's mother without her daughter's knowledge or consent. The defendant argued that the recording should be suppressed pursuant to article 38.23 of the code of criminal procedure because the mother's unauthorized recording of the conversation constituted illegal wiretapping under section 16.02. Id. at 220.
Recognizing that no Texas case had addressed a parent's authority to vicariously consent to the recording of a child's telephone conversation, the court looked to the Sixth Circuit's decision in Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), the leading case regarding the vicarious-consent doctrine in the context of the federal wiretap statute. (3) In upholding the trial court's decision that the parent had not violated the federal prohibition of wiretapping when she recorded conversations between her daughter and the plaintiff, the Pollock court held:
[A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.
Id. at 610. Referencing various state and federal cases addressing the vicarious-consent doctrine, the court of criminal appeals recognized that the doctrine was necessary because children lack both the capacity to consent and the ability to give actual consent. Alameda, 235 S.W.3d at 223. The court then adopted the Pollock court's standard, recognizing the legality of a parent's vicarious consent if the parent had an "objectively reasonable, good-faith belief that consenting for the child was in the child's best interest." Id. The court then upheld the lower court's determination based on the evidence at the suppression hearing. Id.
Appellant acknowledges that this case is "similar to the facts of Alameda." But he argues that the trial court erred in admitting the evidence because "a determination must be made as to whether an objectively reasonable, good-faith belief allows a parent or guardian to violate the privacy interests of the child." He urges there is nothing in the record to demonstrate that the Garners had a reasonable and objective belief that justified their interception of the telephone recordings and e-mail messages. Unlike Alameda in which the defendant filed a motion to suppress and the court of appeals viewed the evidence in the light most favorable to the trial court's rulings, in this case there was no motion on the issue. During Mr. Garner's testimony, appellant objected to the admission of the intercepted communications.
The trial court conducted a hearing outside the presence of the jury. Mr. Garner testified. The trial court found that Mr. Garner had an objective, good faith basis for recording the calls and stated on the record the basis for his ruling: that appellant indicated that no parent could be present at the lessons, that appellant parked his trailer away from everyone else at the horse shows, and that the minor T.G. was engaging in extended telephone conversations and e-mail exchanges with appellant, a 60-year-old man.
Although the chronology of events is unclear, at or about the time T.G.'s guardians decided to intercept T.G.'s communications with appellant, there was testimony that they knew that appellant and T.G. were spending time alone together at horse shows; appellant parked his horse trailer in an isolated location behind the show barn; appellant wanted to give T.G. riding lessons at his residence but only if Mr. Garner was not present; T.G. was spending a lot of time communicating with someone by telephone and e-mail; and appellant had been suspected of "being involved with" another minor female he met at a horse show. Viewing the evidence in the light most favorable to the trial court's rulings, we hold that as a matter of law, the Garners had a good faith, objectively reasonable belief that intercepting T.G.'s telephone conversations and e-mails was in her best interest.
Because we hold that the trial court correctly determined that T.G.'s guardians had a good faith, objectively reasonable belief that intercepting T.G.'s telephone conversations and e-mails was in her best interest, we hold that the trial court did not err in allowing this evidence to be admitted over appellant's objection. We overrule appellant's third point of error.
2. Jury Instruction
Appellant argues in his fourth point of error that the trial court erred by denying his request for an article 38.23(a) instruction regarding the legality of the interception of the audio-taped conversations. Appellant requested that because the audiotapes were played to the jury, the jury should be able to determine whether Mr. Garner's decision to tape the conversations was based upon a good faith, objectively reasonable belief that recording the conversations was in the child's best interest. Appellant proffered a jury instruction that was denied by the trial court. (4)
Article 38.23(a) provides as follows:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (emphasis added). The question, therefore, is whether the legal evidence raises an issue as to whether the intercepted telephone or e-mail communications were obtained in violation of law. Appellant argues that, because there were disputed facts regarding whether T.G.'s guardians had a reasonable belief that the intercepts were in the child's best interest, an article 38.23(a) instruction was required to inform the jury of their right to disregard the evidence of the fruits of the interception if they found the belief unreasonable. Because the disputed evidence does not raise a fact issue as to whether the guardians had a reasonable belief so as to warrant the interceptions, we conclude that an article 38.23(a) instruction is not required. See Madden v. State, No. PD-1243-05, 2007 Tex. Crim. App. LEXIS 1802, at *14-15 (Tex. Crim. App. Dec. 19, 2007); Garza v. State, 126 S.W.3d 79, 84-85 (Tex. Crim. App. 2004) ("[A]n Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained.").
The court of criminal appeals' decision in Madden v. State was announced shortly after briefing in the instant case was completed. It is dispositive of the issue here. A defendant's right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. See Madden, 2007 Tex. Crim. App. LEXIS 1802, at *14-15 (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000) (jury instruction can operate "only if there is a contested issue of fact about the obtaining of the evidence . . . . There is no issue for the jury when the question is one of law only.")). There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested; and
(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
Id. at *15 (citing 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 4.194 (2d ed. 2001)). In Madden, the court stated:
There must be a genuine dispute about a material fact. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.
Id. (footnotes omitted). As in Madden, here there was no dispute as to how the evidence was obtained. There were also sufficient facts--apart from any disputed ones--to support the lawfulness of the challenged conduct. In any event, the only determination to be made in this case was of a legal nature. Appellant's proposed instruction did not ask the jury to decide a disputed issue of historical fact. It asked the jury to decide a question of law--whether the guardians had a reasonable, good faith belief that the interceptions were in the child's best interest. The court in Madden observed that the term "reasonable suspicion" was not the type of suspicion, hunch, or notion that an ordinary person might have. "Rather, it is a legal term of art." Id. at *20. The court then concluded that it is the job of the trial judge to decide the quality and quantity of facts necessary to establish "reasonable suspicion." Only if the underlying facts are disputed does the judge ask the jury to decide whether the actor's belief in those facts was reasonable. Id.
Thus, appellant's proposed instruction was defective: it failed to identify a disputed fact issue upon which the legality of the acquisition of the interceptions turned. Moreover, the reasonableness of the guardians' good faith belief was not a factual issue, but a legal issue. The trial court did not err in refusing appellant's requested jury instruction. We overrule appellant's fourth point of error.
3. Authentication
Appellant complains in his fifth point of error that the e-mail communications were improperly admitted over his objection because the State failed to authenticate the electronic recording evidence. See Tex. R. Evid. 901(a) ("requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims"). Appellant objected to the admission of the e-mails on the grounds that they were unlawfully obtained and that the State failed to call as a witness the person who actually installed the "spyware" on the computer and printed out the e-mails because Mr. Garner acknowledged that he knew little about computers. But appellant did not object to the e-mails on the authentication ground, and he has therefore failed to preserve this issue. See Tex. R. App. P. 33.1. Even had appellant preserved this issue, T.G. testified, identifying the e-mail communications as fair and accurate copies of actual e-mails she exchanged with appellant. She thus provided testimony authenticating the e-mails. We overrule appellant's fifth point of error.
Motion for New Trial
In his sixth point of error, appellant contends that the trial court erred in failing to hold a hearing on his motion for new trial. Asserting that there are facts outside the record relating to his claim that the trial court was required to address in an evidentiary hearing, appellant seeks a remand for such a hearing.
We review a trial court's refusal to hold an evidentiary hearing on a motion for new trial for an abuse of discretion. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002). A trial court abuses its discretion in denying a hearing on a timely filed motion for new trial if the motion raises a matter outside the record upon which relief could be granted. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 22; Flores v. State, 18 S.W.3d 796, 798 (Tex. App.--Austin 2000, no pet.).
The right to a hearing on a motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005); Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993). As a prerequisite to obtaining a hearing on a motion for new trial, a defendant must support his motion with an affidavit showing the truth of the grounds for attack. Martinez, 74 S.W.3d at 21. Generally, a trial court should hold a hearing if the motion and attached affidavit raise matters not determinable from the record that could entitle the accused to relief. Wallace, 106 S.W.3d at 108. To be sufficient to entitle the defendant to a hearing, the motion for new trial and supporting affidavit need not establish a prima facie case for a new trial; however, the motion and affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Id. Affidavits that are conclusory in nature and unsupported by facts are insufficient to put the trial court on notice that reasonable grounds for relief exist. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion that, if proved at a hearing, could entitle him to relief. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21.
Appellant raised the following grounds in his motion for new trial and affidavits supplied by appellant and his counsel: (1) that appellant did not consent to the dismissal of the juror; (2) that not all recorded conversations were turned over to the defense prior to trial; and (3) that trial counsel failed to interview two character witnesses prior to trial who would have attacked T.G.'s credibility and reputation for truthfulness. In the motion, appellant does not assert that these grounds involve facts outside the record nor did he allege any facts which, if proven, would entitle him to the relief requested.
As to the first ground, the trial court made findings that the juror was disabled that remain unchallenged by appellant. With regard to the second ground, numerous communications were introduced showing the nature of the relationship between appellant and T.G.; appellant does not assert what information could be provided to contradict the evidence introduced at trial. The conversation between appellant and another man referenced in the affidavit was provided to appellant during discovery; its admission was discussed at trial and the evidence was excluded by the trial court. As to the third ground, appellant suggests that his counsel was ineffective for failing to interview two possible impeachment witnesses. There is discussion on the record of the two witnesses who appear on the State's witness list but were not served with subpoenas. The parties discuss the possibility of contacting them for potential testimony but reach no conclusion.
Appellant's motion for new trial and his affidavit and that of his counsel were not sufficient to put the trial judge on notice that reasonable grounds existed for holding that relief could be granted. Because the motion and affidavits are conclusory, allege insufficient facts, and fail to allege matters outside the record upon which relief can be granted, the trial court did not err in failing to hold a hearing on the motion. We overrule appellant's sixth point of error.

CONCLUSION

Having overruled appellant's points of error, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: January 30, 2008
Do Not Publish
1. We note that the statute has been amended, but the amendments are not relevant to this appeal. Therefore, we cite to the current version of the statute.
2. We note that the statute has been amended, but the amendments are not relevant to this appeal. Therefore, we cite to the current version of the statute.
3. The court recognized that the federal wiretap statute is "substantively" the same as the Texas statute. Alameda v. State, 235 S.W.3d 218, 222 (Tex. Crim. App. 2007). The federal counterpart to the consent exception is found in 18 U.S.C. § 2511(2)(d) (2007) and states that it is not unlawful for a person not acting under color of law to intercept a wire communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal act.
4. The jury instruction denied by the trial court read as follows:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. It is a violation of Texas law to intercept, record or use electronic communications of any kind, unless one of the parties to the communication consents to the intercept or recording. Therefore, if you believe, or have a reasonable doubt, that the evidence in this cause--consisting of intercepted telephone or email communications, or the testimony pertaining to such intercepted or recorded electronic communications--was obtained in violation of the law governing intercept or recording of electronic communications, then and in such event, you shall disregard any such evidence so obtained.