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Date: 10-11-2020
Case Style:
William Joseph Summerville v. The State of Texas
Case Number: 10-18-00342-CR
Judge: TOM GRAY
Court: TENTH COURT OF APPEALS
Plaintiff's Attorney: Patrick M. Wilson
Defendant's Attorney:
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Description:
Waxahachie, TX - Criminal defense lawyer represented defendant charged with Aggravated Sexual Assault.
William Joseph Summerville was charged with the offense of continuous sexual
abuse of a child. TEX. PENAL CODE ANN. § 21.02. The indictment alleged three acts of
sexual abuse against his niece, M.B., and one act of sexual abuse against another niece,
R.B., during a period of 30 days or more. See id. After a jury trial, Summerville was
convicted of one count of the lesser included offense of aggravated sexual assault of a
child committed against M.B., see TEX. PENAL CODE ANN. § 22.021, and sentenced to 60
years in prison. Because any error in the admission of forensic interview videos of M.B.
Summerville v. State Page 2
and R.B. was harmless and because Summerville’s complaints about the proportionality
of his sentence were not preserved, the trial court’s judgment is affirmed.
FORENSIC INTERVIEWS
In his first issue, Summerville contends the trial court abused its discretion in
admitting the videos of M.B.’s and R.B’s forensic interviews pursuant to Texas Rule of
Evidence 107, the rule of optional completeness.1 Specifically, he contends 1) he never
introduced any portion of the interviews for any purpose, so Rule 107 is inapplicable; and
2) the State sought to introduce the entire interviews to prove the absence of statements
which is an impermissible use of Rule 107.
Although we question whether these videos were admissible, assuming without
deciding that they were not, we do not find that Summerville was harmed by their
admission. The purported erroneous admission of evidence is non-constitutional error
and is subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Under Rule 44.2(b), an
appellate court must disregard non-constitutional error unless the error affected the
defendant's substantial rights. TEX. R. APP. P. 44.2(b); see also Gerron v. State, 524 S.W.3d
308, 325 (Tex. App.—Waco 2016, pet. ref'd). A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury's verdict.
Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). If so, or if one is left in grave
1 “When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one
party, the whole on the same subject may be inquired into by the other, and any other act, declaration,
writing or recorded statement which is necessary to make it fully understood or to explain the same may
also be given in evidence, as when a letter is read, all letters on the same subject between the same parties
may be given.” TEX. R. EVID. 107.
Summerville v. State Page 3
doubt, the conviction cannot stand. Id. But, if the error did not influence the jury, or had
but very slight effect, the verdict and the judgment should stand. Id.
In this case, the videos did not have a substantial and injurious influence on the
verdict. As the parties agree, the videos were consistent with M.B.’s and R.B.’s trial
testimony. They did not inject any additional evidence before the jury, such as evidence
of extraneous offenses or additional details to which the girls may have neglected to
testify. The videos were not offered during M.B.’s or R.B.’s testimony. They were offered
and introduced into evidence the day after their testimony and without any testifying
witness. No one took the stand to testify about or narrate any portion of the videos. And
although the State mentioned during its opening argument to the jury what one of the
girls told the interviewer, Summerville used the interviews more extensively in his
argument to discredit M.B. and R.B., to which the State responded in its closing argument.
Further, the jury only convicted Summerville as to one lesser included offense
against M.B. Summerville was charged with the offense of continuous sexual abuse of a
child in which the indictment alleged three acts of sexual abuse (two aggravated sexual
assault and one indecency) committed against M.B. and one act of sexual abuse
(indecency) committed against R.B. Instead of convicting Summerville of the offense
charged, the jury found Summerville guilty of only one count of aggravated sexual
assault against M.B.
Accordingly, after reviewing the record, the trial court’s admission of the forensic
interview videos, if erroneous, did not have a substantial and injurious influence on the
verdict, and Summerville’s first issue is overruled.
Summerville v. State Page 4
DISPROPORTIONATE SENTENCE
In his second and third issues, Summerville complains that his sentence of 60 years
is grossly disproportionate under the U.S. and Texas Constitutions. See U.S. CONST.
amend. VIII; see also TEX. CONST. art. I, § 13. A disproportionate-sentence claim must be
preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d
113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref'd). At trial, Summerville did not object to the imposed sentence.
Further, Summerville did not raise a disproportionate-sentence claim in his motion for
new trial or otherwise present a post-trial objection to the imposed sentence. Thus,
Summerville's complaints are not preserved, and his second and third issues are
overruled.
Outcome: Having overruled each issue on appeal, we affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
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