Danny Lee Dustman v. State

Citation: Not availableDocket: 12-04-00167-CR

Court: Court of Appeals of Texas; August 17, 2005; Texas; State Appellate Court

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Danny Lee Dustman was convicted of indecency with a child by sexual contact and two counts of indecency with a child by exposure, receiving a sentence of twenty years for the former and five years for each of the latter. The victim, Dustman's daughter, testified that from ages nine to fifteen, he fondled her and exposed himself while masturbating, occurring over twenty times. The victim revealed that her half-brother also physically and sexually abused her when he moved in with the family, but she believed Dustman was unaware of this abuse. She initially did not disclose her father's actions due to fear of retaliation against her mother but eventually confided in a friend, leading to Dustman's arrest.

Dustman raised two issues on appeal. First, he contended that the trial court improperly admitted evidence of his half-brother's abuse, arguing it was irrelevant and unfairly prejudicial. The prosecutor asserted that if Dustman was aware of the abuse and allowed it to continue, it was pertinent to the case. The court overruled Dustman's objection. Second, Dustman argued that a mistrial should have been granted after the prosecutor claimed he had sexual intercourse with multiple victims without evidence to support this assertion. The appellate court affirmed the trial court's decisions, indicating no error in admitting the evidence or denying the mistrial.

Appellant did not object to questions regarding his knowledge of other convictions, resulting in a failure to preserve any potential error. Although questions suggested Appellant had prior convictions, the record contains no evidence of such. Appellant claims the State's introduction of evidence regarding his half-brother's sexual abuse of the victim and subsequent improper questions to his wife violated his due process rights under the First and Fourteenth Amendments and corresponding Texas constitutional provisions. 

Appellant objected to testimony about the victim's brother abusing her, arguing it was irrelevant and prejudicial to the jury's punishment determination. Relevance is assessed based on the logical connection between the offered evidence and the fact to be proved. Evidence of the half-brother's abuse, without Appellant's knowledge, was deemed irrelevant to Appellant’s punishment, although it illustrated the dysfunctional nature of his family. The trial court erred by allowing this testimony. 

Despite this, the court did not consider Appellant's due process claim because he did not object to the questions posed to his wife regarding his alleged other convictions. The court focused on whether Appellant was harmed by the erroneously admitted testimony. According to Texas Rule of Appellate Procedure 44.2, constitutional errors require reversal unless the error did not contribute to the conviction or punishment, while non-constitutional errors must be disregarded unless they affect substantial rights. Erroneous admission of evidence is not deemed constitutional error unless a correct ruling was constitutionally necessary. A new trial is warranted if the error substantially impacted the jury's determination of guilt or punishment.

The trial court erred by admitting irrelevant evidence, but this did not constitute a constitutional error. The focus is on whether the admission of this evidence influenced the jury's punishment assessment, which was set at the maximum of twenty years despite the Appellant having no prior criminal record. The jury's decision was largely supported by evidence of the Appellant's six years of sexual abuse against his daughter, including threats of violence to prevent disclosure. The irrelevant evidence regarding the victim's half-brother was mitigated by the victim's testimony and did not impact the jury's decision.

In addressing the Appellant's second issue regarding improper argument by the prosecutor, the Appellant claimed the trial court wrongly denied his motion for mistrial after the prosecutor suggested he admitted to sexual conduct with three victims. While there was evidence of abuse involving three other children, there was no specific evidence of sexual intercourse. The prosecutor's remarks were challenged, and the court instructed the jury to disregard the statement. The rules permit certain types of jury arguments, and any improper comments typically do not lead to reversible error unless they are extreme or introduce new, harmful facts. In this case, the objection and curative instruction were deemed sufficient to address any potential harm from the prosecutor's statements.

In Melton v. State, the Texas Court of Criminal Appeals established that if an improper argument during trial involves a constitutional issue, such as referencing the accused's decision not to testify, a conviction must be reversed unless it can be shown beyond a reasonable doubt that the error did not impact the verdict (Tex. R. App. P. 44.2(a)). For other errors that do not affect substantial rights, courts must disregard them (Tex. R. App. P. 44.2(b)). When evaluating improper argument cases under Rule 44.2(b), courts consider the severity of the misconduct, the remedial measures taken, and the likelihood of conviction without the misconduct. In this case, the prosecutor's mischaracterization of the appellant's actions as "having sex" was not deemed extreme or willful, as the prosecutor recognized the misstatement before the defense could fully object, and the trial judge quickly instructed the jury to disregard the comment. The court concluded that the misconduct was not sufficiently prejudicial to warrant a mistrial, affirming the trial court's denial of the appellant's motion for mistrial. The judgments in all three related cases were affirmed.