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Opinion filed May 4, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00061-CR
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CURMIT THOMAS HATCHER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 03CR3867
O P I N I O N
The jury convicted Curmit Thomas Hatcher of aggravated sexual assault of a child younger than fourteen years old and assessed his punishment at confinement for thirty-five years. Appellant had invited the victim and four or five other boys to stay overnight at his house. The jury found that appellant, known as ACoach,@ sexually assaulted the five-year-old victim during the sleepover at appellant=s house on October 9, 2003. We affirm.
The trial court designated the victim=s mother as the outcry witness. Appellant argues that the trial court erred in allowing Eunice Contreras, the victim=s psychotherapist, to testify to a statement the victim made to her and to state that she had a legal duty to report child abuse after her interview with the victim. Appellant also argues that he received ineffective assistance of counsel and that the evidence was factually insufficient to support the conviction.
Designation of the Outcry Witness
Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005) governs the admissibility of victim outcry statements. It provides that certain hearsay testimony is admissible in the prosecution of offenses committed against children twelve years of age or younger. Article 38.072 applies to outcry statements that (1) were made by the victim against whom the offense was allegedly committed and (2) were made to the first person, eighteen years of age or older, other than the defendant, to whom the victim made a statement about the offense. To constitute outcry evidence, the victim=s statement must be more than a general allusion that sexual abuse is going on; the statement must describe the offense in some discernible manner. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Smith v. State, 131 S.W.3d 928, 930-31 (Tex. App.CEastland 2004, pet. ref=d). A trial court has broad discretion in determining the admissibility of outcry evidence, and its determination as to the proper outcry witness will not be disturbed absent a showing in the record that the trial court abused its discretion. Garcia, 792 S.W.2d at 92. A trial court abuses its discretion if it fails to analyze or apply the law correctly. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
The State had selected Contreras as the outcry witness, and the indictment was based on the victim=s outcry statement to her that appellant Aput it in my butt.@ The indictment alleged that appellant sexually assaulted the victim, a child younger than fourteen years of age, by penetrating the victim=s anus with his male sexual organ. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2005).
At the beginning of the trial, the court held a hearing outside the presence of the jury. Appellant had objected to the designation of Contreras as the outcry witness, contending that the outcry witness should be Debra Ann Lammon, the victim=s mother. Lammon testified that appellant was the bus driver for the Woman=s Crisis Center Discovery Program, an after-school program for children. Lammon stated that, about a week after the victim spent the night at appellant=s apartment, she asked him why he was taking so long in the shower and if something was wrong. The victim told her that Ahe was hurting below.@ When Lammon asked him if somebody had done something to him, the victim said, AYes.@ The victim then said ACoach@ but immediately changed his response to ADustin and Dalton,@ two other boys who lived at the Crisis Center. The victim told her that somebody had been messing with Dustin and Dalton. Lammon testified that she went to see John Doyle, who was in charge of the Crisis Center, that evening and told him that A[her] son [was] telling [her] something. Can you assist me?@ Doyle contacted Contreras, the psychotherapist, and asked her to speak with Lammon.
Contreras testified that, from October 13, 2003, when she first spoke to Lammon to December 12, 2003, when she interviewed the victim, she and Lammon had scheduled three appointments. Due to conflicts, Lammon did not bring the victim in until December 12. When Contreras asked the victim about the night at Coach=s house, he became more restless and distracted and asked if he could go to his mother. She asked what happened to him. At first, the victim would not respond and played with the toys in her office. Contreras asked him again if anything had happened, and he said, AYes.@ The victim pointed downward and said that Coach had Aput his thing there@ but that he did not Awant to say it.@ Contreras then asked the victim to whisper it in her ear so that she could understand. The victim then whispered in her ear that A[h]e put it in my butt.@
The State argues that the trial court abused its discretion in designating the mother as the outcry witness. We agree. Lammon=s testimony was that her five-year-old son only made a general allusion to something that had happened to him; that is why she sought some assistance. The mother=s lack of knowledge was further confirmed during the jury trial by Dr. James Lewis Lukefahr, the pediatrician who examined the victim on December 15, 2003, at the Children=s Advocacy Clinic. Dr. Lukefahr testified that, according to his records, the mother had stated that the victim Ahas not told me anything, really.@ The victim first described the alleged offense in a discernible manner to Contreras. Contreras was the proper outcry witness. See Garcia, 792 S.W.2d at 88.
Issues Concerning Contreras=s Testimony
In appellant=s first issue, he argues that the trial court erred in allowing Contreras to testify during cross-examination that the victim told her A[Coach] stuck it in my butt.@ In appellant=s second issue, he argues alternatively that appellant received ineffective assistance of counsel if his trial counsel Aopened the door@ to allow Contreras to testify about the statement. In appellant=s third issue, he argues that the trial court erred in allowing Contreras to state that she had a legal duty to report child abuse after her interview with the victim.
Even assuming that the mother was the proper outcry witness, the trial court properly admitted, under the optional completeness rule, Contreras=s statement concerning what the victim whispered to her. During cross-examination, counsel for appellant began reading from Contreras=s notes and asked her about what the victim had told her. Specifically, counsel asked if the victim had told Contreras that two boys had touched him. At that point, the State objected, and the jury was released for lunch. The State argued that counsel for appellant was violating the motion in limine by bringing up other possible acts of sexual abuse and that, if counsel continued to ask Contreras what she was told during the therapy session, the State should be allowed to ask Contreras about the statement that the victim whispered to her. The trial court sustained the State=s objection and warned counsel that, if he wanted to pursue what the victim told the therapist, he ran the risk that the victim=s statement Ahe put it in my butt@ would be allowed into evidence.
Appellant points out in his brief that appellant=s trial counsel=s strategy was to elicit testimony from Contreras that would challenge the victim=s credibility before he testified. When the jury returned, counsel for appellant got Contreras to acknowledge that children can become agitated when telling a lie and that the victim had made some unbelievable statements to her. Contreras testified that one unbelievable statement was that the victim told her that appellant had confessed to him that appellant had murdered other boys. Counsel then asked the following questions:
[COUNSEL]: And you also asked [the victim] if Coach had done anything to him and didn=t [the victim] shrug his shoulders?
[CONTRERAS]: He shrugged his shoulders; right.
[COUNSEL]: And he kept playing; is that correct?
[CONTRERAS]: Uh-huh.
On redirect, the State asked Contreras about what the victim had whispered in her ear. Over appellant=s objection, Contreras was allowed to say that the victim said, AHe put it in my butt.@
The questioning by appellant=s counsel left the jury with the impression that the victim was not to be believed and that the victim had not accused appellant during his therapy session with Contreras. The State was entitled to correct that impression under the rule of optional completeness. See Credille v. State, 925 S.W.2d 112, 116-17 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Moreover, there was no harm because the proper outcry witness was Contreras. Appellant=s first issue is overruled.
In appellant=s second issue, he argues that he received ineffective assistance of counsel because his trial counsel allowed the victim=s whispered statement to come in. To determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
Appellant=s trial counsel=s representation did not fall below an objective standard of reasonableness. Trial counsel adopted a strategy of attacking the credibility of the child victim through asking Contreras about unbelievable statements made by the victim. That strategy was a reasonable one even though it involved the risk that the trial court would allow the whispered statement to come in. Moreover, Contreras was the proper outcry witness, and the whispered statement was the outcry. Appellant=s second issue is overruled.
In appellant=s third issue, he contends that the trial court erred in allowing Contreras to state that she made a report of child abuse after interviewing the victim. Appellant=s argument is that the victim=s whispered statement should not have come in because it was hearsay, and Contreras=s statement that she made a report of child abuse implied that the victim told her that appellant sexually abused him. Thus, appellant contends that the State circumvented the hearsay prohibition through its question to Contreras. See Schaffer v. State, 721 S.W.2d 594, 597 (Tex. App.CCorpus Christi 1986), aff=d, 777 S.W.2d 111 (Tex. Crim. App. 1989).
First, appellant=s objection at trial was to the form of the State=s question, not that it elicited implied hearsay. Appellant=s objection on appeal differs from his objection at trial. Nothing is presented for review. House v. State, 947 S.W.2d 251, 257 (Tex. Crim. App. 1997). Second, the victim=s whispered statement was properly allowed either as the proper outcry statement or as a statement under the doctrine of optional completeness. Appellant=s third issue is overruled.
Factually Sufficiency of the Evidence
In appellant=s fourth issue, he argues that the evidence is factually insufficient. To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). The jury may accept one version of the facts and reject another. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
Contreras was the State=s first witness. She testified that the victim described what appellant did to him, that the victim said it hurt, and that he wanted to see a nurse. Lammon, the victim=s mother, was the second witness. She basically repeated her testimony at the pretrial hearing where the trial court selected her as the outcry witness. Lammons did add that, after the conversation when the victim was in the shower, he did not want to go to the Discovery Club again. Also, the victim started sexually acting out after that day, asking children at school to suck his private area and French kiss.
Dr. Lukefahr, a pediatrician, stated that he was a Medical Director of the ABC Center, which is the University of Texas Medical Branch=s facility for examining children who may have been the victims of child abuse or neglect. Dr. Lukefahr first examined the victim on December 15, 2003, and he introduced the medical records of the victim. Dr. Lukefahr testified that the physical examination of the victim found abnormalities that A[c]ould be consistent with abuse but also seen in non-abused children.@ Although the physical findings by themselves were nonspecific, Dr. Lukefahr explained that A[t]he anal area of the body is particularly able to heal superficial injuries very quickly.@ Because some anal injuries have been documented as being healed within twenty-four hours, he was not surprised that the physical findings of his examination turned out to be nonspecific two months after the sleepover.
Dr. Lukefahr further testified that the behavioral history given by the mother and the reported physical complaints by the victim to his mother raised concerns for sexual abuse. The mother had reported that there was a dramatic change in the victim=s behavior that started in October 2003. The victim had regressed in his toilet training by wetting and defecating in his pants and had rectal pain. Dr. Lukefahr stated that those behavioral changes raised concerns that something traumatic had happened to the victim during the few months prior to his examination of the victim.
The victim was six years old when he testified. The victim=s testimony was clear. When asked if something happened to his body that he didn=t like, he answered, AYes.@ The victim said it was Coach Hatcher who touched his back private with Coach=s front private and that it happened at Coach Hatcher=s house. It made him feel sad. During cross-examination, appellant=s counsel asked if Dustin and Dalton had ever touched him in the butt. The victim=s answer was an unequivocal A[n]o.@ The victim testified that he was pretending that he was sleeping when appellant touched the victim=s back private with appellant=s front private.
Appellant=s first witness was John Doyle, a case manager at the shelter. He testified that Lammon had not told him of any incident involving appellant and that Lammon had not made a report of any sexual abuse. His testimony was consistent with all the other testimony that demonstrates that the trial court selected the wrong outcry witness under the requirements of Garcia.
Appellant then called two boys to testify. Although both testified that they did not see appellant do anything to the victim during the night of the sleepover, both admitted that something could have happened while they were asleep.
Appellant=s next witness was Virginia Niebuhr, a clinical pediatric psychologist who saw the victim four times between February and April 2004. She testified that the victim had repeated behavioral problems since August 2003. She diagnosed him as having attention deficit hyperactivity disorder (ADHD). On cross-examination, Dr. Niebuhr stated that there was nothing about ADHD or an abusive or homeless past that would make a five-year-old child not credible. Dr. Niebuhr testified that the victim=s mother had brought him to her for an opinion Aon how he was doing@; he was not there for the purpose of therapy or counseling to deal with sexual abuse. She testified that it was not unusual that the victim did not tell her about the sexual abuse because the victim had already made an outcry (to Contreras) and, often, children do not want to tell their story again. Dr. Niebuhr gave her opinion that she did not think that children make false accusations about sexual abuse and that sexual abuse was a major cause of a child sexually acting out.
Appellant=s last witness was Jimmi Dean Jones, the victim=s elementary school teacher. She testified that the victim had behavioral problems from the start of school in September 2003. Jones stated that one morning the victim came in and told her that they were going to get lots of money and that they had filed charges for the victim. She did not ask what the charges were. Jones said that she was trying to get the victim some counseling. The victim would lie to her about whether he had hit another child. On one occasion, in August, the victim pulled his pants down, and she told him that that was not acceptable. Between August 2003 and March 2004, when the victim left that school, Jones suspended the victim twenty-four times. During cross-examination, Jones acknowledged that the victim could tell the truth, that she had never had a conversation with the victim about sexual abuse, that she was not present when Contreras interviewed the victim, and that she was not familiar with the victim=s medical records.
Having reviewed all of the evidence in a neutral light, we do not find that the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or that the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. See Zuniga, 144 S.W.3d at 377. The evidence is factually sufficient to support the verdict. Appellant=s fourth issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
May 4, 2006 TERRY McCALL
Do not publish. See Tex. R. App. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.