NO. 12-98-00049-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MILTON POWELL,§ APPEAL FROM THE 1ST
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SABINE COUNTY, TEXAS
MEMORANDUM OPINION ON REMAND
A jury convicted Milton Powell of indecency with a child and sentenced him to fifteen years of imprisonment. After finding the trial court committed error by admitting extraneous offense evidence, this court reversed the conviction. Powell v. State, No. 12-98-00049-CR, 2000 Tex. App. LEXIS 3651 (Tex. App.-Tyler, May 31, 2000), rev'd, 63 S.W.3d 435 (Tex. Crim. App. 2001). The court of criminal appeals disagreed with this court's determination, held that the evidence was admissible to rebut a defensive theory, and remanded the case to this court with instructions to determine whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Powell, 63 S.W.3d at 440. After due consideration, we conclude that the probative value of the evidence outweighs the danger of unfair prejudice. We also review the remainder of Appellant's issues which concern admissibility of evidence, jury argument, and the propriety of the State's cross-examination of defense witnesses during the punishment phase. We affirm the trial court's judgment.
Background
Appellant was the pastor of a church. He and his wife had four daughters, each of whom had numerous friends who frequently spent the night at Appellant's home. When girls spent the night, they ordinarily slept together in the living room. M.S. and her family were members of Appellant's church. M.S. loved the Powells like a second family and, for a period of approximately three and one-half years, spent one or two nights a week at their house. M.S. testified that Appellant woke her up in the night touching her vaginal area. Once, he tried to force his penis into her mouth. A couple of times, he "felt around with his tongue" and "kissed" her vaginal area. She explained that, although she was never alone with Appellant, he touched her inappropriately every time she spent the night at his home. She also noted that she would fall asleep near her friends, but they would not be close to her when Appellant woke her up.
In addition to other evidence, the State presented the testimony of four witnesses who all testified that Appellant had touched them inappropriately when they spent the night at his house with his daughters. After the testimony of the first of these four witnesses, the trial court gave the following limiting instruction to the jury:
The defendant is on trial solely on the charge contained in the indictment. In reference to evidence, if any, that the defendant has previously participated in recent transactions or acts other than but similar to that which is charged in the indictment in this case, you are instructed that you cannot consider such other transactions or acts, if any, for any purpose unless you find and believe beyond a reasonable doubt that the defendant participated in such transactions or committed such acts, if any, and even then you may only consider the same for the purpose of determining motive, opportunity, intent, plan, or the absence of mistake or accident, if it does, and for no other purpose.
The defense presented thirteen girls who all testified that they had spent the night at Appellant's house and had not been touched inappropriately or seen Appellant commit any assaults. Appellant's wife and each of their four daughters also testified on his behalf, denying that anything inappropriate ever happened. Appellant took the stand and denied all allegations against him. The State offered two witnesses in rebuttal who testified that Appellant had touched them inappropriately when they were overnight guests at Appellant's house.
In his closing argument to the jury, the prosecutor commended M.S. and the six witnesses who testified about extraneous offenses for their courage in coming forward. He also stated that Appellant was on trial only for crimes allegedly committed against M.S. He then explained the purposes for which the jury could consider the evidence of crimes against other victims. He closed by asking the jury to "keep in mind the victims of this man." The trial court included a limiting instruction in the jury charge cautioning the jury to consider the extraneous evidence offense only for certain, specified purposes. The charge explained that Appellant was indicted for aggravated sexual assault by causing the penetration of the mouth of M.S. by his sexual organ and for indecency with a child by engaging in sexual contact by touching the genitals of M.S. The jury was unable to reach a verdict on the aggravated sexual assault charge, but found Appellant guilty of indecency with a child.
Extraneous Offenses
In his first issue, Appellant asserts the trial court erred by allowing the State to introduce testimony of six witnesses, all of whom described alleged assaults by Appellant. He argues that the State offered testimony of alleged extraneous offenses merely to present Appellant as a child abuser in general and to show that he acted in conformity with his character. He opines that this testimony is not necessary to prove the State's case and, therefore, is not admissible. He argues that, especially in light of the prosecutor's jury arguments, allowing six witnesses to testify that Appellant is a child molester caused unfair prejudice.
The State responds that the testimony of those six witnesses was properly presented to rebut Appellant's defensive theories that 1) the complainant's story was unreasonable because she repeatedly returned to his house, 2) the complainant was never alone with Appellant, 3) the charges were merely a cry for attention, and 4) after her parents filed a civil suit against Appellant, the complainant became motivated by money. The State urges that the probative value of the testimony of these witnesses outweighed the danger of any unfair prejudice.
Applicable Law
An accused may not be tried for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). Thus, once otherwise inadmissible character evidence is shown to be relevant and admissible for permissible purposes, the court must consider if the evidence must be excluded on grounds contemplated by Rule of Evidence 403. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Rule 403 carries the presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of "unfair" prejudice, that is the tendency of the evidence to suggest a decision on an improper basis. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex. Crim. App. 1991) (op. on reh'g). Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones, 944 S.W.2d at 652.
The appellate court reviews the trial court's balancing of probativeness and prejudice under an abuse of discretion standard. Montgomery, 810 S.W.2d at 390. The trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value. These factors include: 1) how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable, 2) the extraneous offense's potential to impress the jury in some irrational but indelible way, 3) the trial time that the proponent will require to develop evidence of the extraneous conduct, and 4) the proponent's need for the extraneous transaction evidence. Wheeler, 67 S.W.3d at 888. If review of the relevant criteria leads to the conclusion that the danger of unfair prejudice substantially outweighs the probative value of the proffered evidence, the trial court erred in failing to exclude it. Montgomery, 810 S.W.2d at 392.
How Compelling the Evidence Is
Evidence that other young girls were assaulted by Appellant under the same circumstances is highly probative, making the fact of Appellant's assault on M.S. more probable. In each instance, the victim was sleeping in the living room of Appellant's home with Appellant and at least one other girl. This lends credibility to M.S.'s complaint and diminishes the viability of Appellant's argument that he could not have assaulted M.S. because he was never alone with her. Like M.S., five of the witnesses testified that they were awakened in the night when Appellant rubbed or touched them inappropriately. The sixth witness testified that she woke up when she felt Appellant's head under her blanket, near her buttocks. This, too, is probative as another example of Appellant's inappropriate behavior. Two of the witnesses testified that Appellant had moved them during the night. This corroborates M.S.'s testimony that she would fall asleep next to her friends but they would not be near her when Appellant woke her up.
Five of these witnesses were friends with Appellant's daughters and had known Appellant for years. These girls repeatedly returned to stay overnight at Appellant's house with their friends. Two of these testified that they eventually began sleeping in a bedroom where Appellant would not follow. The sixth girl explained that she knew Appellant because he was her baseball coach. She stayed one night with one of Appellant's daughters but never returned. Collectively, these girls reinforced M.S.'s testimony that, although she was assaulted every time she stayed at Appellant's house, she kept returning because she did not want to lose her friends, Appellant's daughters. The behavior of the six witnesses is relevant to M.S.'s behavior. This testimony directly attacks Appellant's argument that M.S.'s story was unreasonable because she repeatedly returned to his house.
Potential to Impress Jury in Irrational and Indelible Way
Four of the witnesses described assaults essentially the same as M.S. described. Two of the witnesses testified to more invasive sexual acts. J.G. testified that Appellant made her touch his penis. R.N. testified that Appellant penetrated her vagina with his fingers. However, while this testimony may have had a factual impact, in light of M.S.'s testimony that Appellant forced his penis into her mouth and "kissed" her vaginal area, these extraneous offenses did not irrationally impress the jury in a way that could materially impact its decision-making process. Further, any impermissible inference of character conformity was minimized through a limiting instruction to the jury. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). The trial court gave a limiting instruction to the jury explaining that it could not consider the extraneous offense evidence for any purpose other than determining motive, opportunity, intent, plan, or the absence of mistake or accident. We cannot conclude that the extraneous offense evidence was likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of that evidence to its proper purpose. See Montgomery, 810 S.W.2d at 397.
Trial Time Needed
The record in this case is over 1600 pages long. Of that, the guilt/innocence portion is approximately 1000 pages. The testimony of the six complained-of witnesses is contained in less than 150 of those pages. Compared to the length of the entire trial or the guilt/innocence portion, the State spent a relatively short amount of time presenting the extraneous offense evidence. Therefore, presentation of this evidence did not divert the jury from consideration of the indicted offense.
State's Need for the Evidence
Other than M.S., there were no witnesses to the alleged offenses against her. The jury had to determine whether to believe M.S. or Appellant. The testimony of six young girls describing assaults by Appellant committed under the same circumstances goes directly to M.S.'s credibility and the reasonableness of her story. See Wheeler, 67 S.W.3d at 888 (extraneous offense evidence describing an offense similar to the charged event contradicted Wheeler's defensive theories). Five of those six witnesses returned repeatedly in spite of the abuse, as did M.S. The one that did not return was not close to any of Appellant's children. The evidence rebuts Appellant's theory that M.S.'s story was unreasonable because she returned to his house. The extraneous offense evidence served to decrease the likelihood that M.S. made the allegations against Appellant as a cry for attention. Further, four of the six witnesses stated that they do not have a lawsuit pending against Appellant, thus rebutting Appellant's claim that M.S. was motivated by the possibility of financial gain.
Our review of the record and relevant factors under Rule 403 leads us to conclude that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial impact. See id. Accordingly, we hold that the trial court did not abuse its discretion in admitting this evidence. Accordingly, we overrule Appellant's first issue.
Hearsay
In his second issue, Appellant asserts the trial court erred in allowing the State to present hearsay evidence. Specifically, Appellant complains that Sheri Greer testified about statements her daughter, J.G., made to her regarding an extraneous offense allegedly committed by Appellant. He argues that the admission of the hearsay bolstered the State's attempted proof of the extraneous offense and was harmful error.
The State contends the evidence is admissible as an excited utterance. Excited utterances, statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, are admissible as exceptions to the hearsay rule. Tex. R. Evid. 803(2). This exception is founded on the belief that statements resulting from a startling event are trustworthy because of the declarant's lack of opportunity to fabricate. Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.-Fort Worth 1995, pet. ref'd). The critical factor is whether the declarant made the statement while dominated by the emotions arising from a startling event or condition. Id. The trial court's decision to admit evidence will be reversed on appeal only if the court abused its discretion. Id.
Sheri Greer testified that she attends the church where Appellant had been pastor. Her daughter, J.G., was friends with one of Appellant's daughters and at times spent the night at Appellant's home. She stated that, on one Sunday, a church member stood up in church and made some statements about the allegations of child sexual abuse against Appellant. When J.G. heard those statements, she became visibly upset and started crying. Ms. Greer and J.G. left the church and got in Ms. Greer's car. She tried to console her daughter and J.G. kept saying, "It's true, mama. It's true." As they were driving away from the church, J.G. continued to be upset. Ms. Greer testified that J.G. "said that Milton had picked her up off the couch one night in the middle of the night and she woke up after he picked her up. And he put her in the recliner with him and he took her hand and put it in his pants and moved it up and down." J.G. told her "it felt smooth and sticky."
The testimony established that J.G. heard statements about the allegations against Appellant and immediately became very emotional and upset. She remained upset and was crying as she told her mother about what Appellant had done to her. The utterances were made before there was time to contrive and misrepresent and they related to the startling event that had just occurred in church, a public discussion of the child sexual abuse allegations against Appellant. See Sellers v. State, 588 S.W.2d 915, 918-19 (Tex. Crim. App. [Panel Op.] 1979); Hunt, 904 S.W.2d at 816-17. We conclude that the complained-of testimony is admissible as an excited utterance, an exception to the hearsay rule. Tex. R. Evid. 803(2). As the trial court did not abuse its discretion in admitting the evidence, we overrule Appellant's second issue.
Credibility of Complainant
In his third issue, Appellant asserts the trial court erred in allowing opinion evidence of a counselor and a psychiatrist as to the credibility of the complainant, M.S. He complains that Reva Batts, a licensed professional counselor, testified that M.S. was not fantasizing, had not been coached, was not operating under duress of her parents, and was not testifying out of a motive of revenge. He also complains that psychiatrist Dr. Edward Gripon testified that the child was not being coached, was not fantasizing, and was not acting out of revenge. He argues that the testimony is inadmissible bolstering.
Ms. Batts explained that she has been trained to recognize whether a child is fantasizing, being coached, or under duress or motivation to lie. She interviewed M.S. on two separate dates. Ms. Batts testified that M.S. did not exhibit any characteristics of a child who was fantasizing. Further, Ms. Batts saw no evidence that M.S. was coached, motivated by money, under duress from her parents, or that she had any desire for revenge.
Dr. Gripon interviewed M.S. one time. M.S. has also seen a licensed professional counselor in Dr. Gripon's office. He explained the traits exhibited by a child who has been coached. Dr. Gripon testified that M.S. did not strike him as a child who could be easily coached and she did not exhibit any characteristics of a child who was being coached. He explained what to look for to determine if a child is fantasizing. Dr. Gripon stated, "I don't think her story could be at all explained on the basis of fantasy. So, no, I don't think that was a product of someone's fantasy life." Appellant's objection to this response was sustained and the trial court instructed the jury to disregard that answer. The prosecutor then asked if M.S. exhibited characteristics suggestive of a child being vengeful. Dr. Gripon responded, "No, it did not appear to be on the basis of revenge."
Applicable Law
We review a trial court's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). The threshold determination for admitting expert testimony is whether the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702; Rousseau v. State, 855 S.W.2d 666, 686 (Tex. Crim. App. 1993). Expert testimony assists the trier of fact when the jury is not qualified to the best possible degree to determine intelligently the particular issue without the help of the testimony. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). But, the expert testimony must aid, not supplant, the jury's decision. Id. Expert testimony does not assist the jury if it constitutes a direct opinion on the truthfulness of a child complainant's allegations. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993) (op. on reh'g).
Discussion
Ms. Batts did not express an opinion about whether M.S. was fantasizing, had been coached, was operating under duress, or acting out of revenge. She merely stated that M.S. did not exhibit any characteristics of a child who is fantasizing. In the same vein, Ms. Batts stated she saw no evidence that M.S. was coached, motivated by money, under duress from her parents, or had a desire for revenge. This is tantamount to saying she saw no characteristics normally present in a child who has been coached, is motivated by money, under duress, or had a desire for revenge. Both sides agree that M.S.'s credibility was at issue. We conclude that Ms. Batts testimony is admissible as rebuttal to Appellant's attacks on M.S.'s credibility. Schutz, 957 S.W.2d at 73.
Likewise, Dr. Gripon's testimony that M.S. did not strike him as a child easily coached and that she did not exhibit characteristics of a child being coached does not constitute an opinion that M.S. was not coached and those statements are admissible as rebuttal testimony. Id. Dr. Gripon's statements that M.S.'s story could not be explained on the basis of fantasy and that he did not think her story was a product of someone's fantasy life are inadmissible. The trial court sustained Appellant's objection that the testimony constitutes a direct opinion on the credibility of another witness. The trial court instructed the jury to disregard Dr. Gripon's answer. Defense counsel made no request for a mistrial. Therefore, Appellant received all the relief he requested. His failure to preserve an adverse ruling forfeited his right to complain on appeal. Parrish v. State, 950 S.W.2d 720, 724 (Tex. App.-Fort Worth 1997, no pet.).
Finally, we consider Dr. Gripon's statement that it did not appear that M.S. made the allegations of abuse on the basis of revenge. Dr. Gripon did not testify that M.S. did not exhibit characteristics associated with revenge. He expressed an opinion on whether M.S. had in fact acted out of revenge. This constitutes a direct comment on M.S.'s credibility and, as such, it was inadmissible. Schutz, 957 S.W.2d at 73. The State argues that the testimony is nonetheless admissible because Appellant "opened the door." Specifically, the State asserts that Appellant attempted to show M.S.'s family's dislike of Appellant as a preacher and the jealousy of M.S. and her sister toward Appellant's daughters. The State relies on testimony of Theresa Sanders, M.S.'s mother. However, Mrs. Sanders never said M.S. did not like Appellant. Mrs. Sanders had some negative opinions about Appellant as a preacher. This testimony does not implicate M.S.'s credibility. Mrs. Sanders testified about the relationship of M.S.'s sister Heather and Appellant's daughter Brandy. She denied any jealousy existed between them. There was no mention of jealousy on M.S.'s part. The State did not need to respond to Mrs. Sanders' testimony with expert testimony about the truth of the allegations. See id. at 74. Therefore, we cannot say Appellant opened the door to Dr. Gripon's testimony that M.S.'s allegations did not appear to be on the basis of revenge. We must, therefore, conduct a harm analysis to determine if admission of this testimony is reversible error. See id.
The trial court's erroneous admission of Dr. Gripon's comment on M.S.'s credibility is a non-constitutional error. See Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001). Therefore, we are to disregard the error unless it affected Appellant's substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a conviction for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or influenced the jury only slightly. Schutz, 63 S.W.3d at 444.
Appellant's opening argument to the jury placed M.S.'s credibility at issue from the beginning of the trial. M.S., age fourteen at the time of trial, testified in detail about her allegations that Appellant assaulted her on a regular basis from the time she was nine or ten until she was twelve and could not take it anymore. She described his actions, her reactions, and her failed suicide attempts. The jury certainly had ample opportunity to observe her and determine for itself the level of trustworthiness her testimony warranted. Six other girls testified, describing essentially the same allegations against Appellant. Ms. Batts' and Dr. Gripon's testimonies are consistent with M.S.'s allegations. Brenda Garrison, the sexual assault examiner who examined M.S., found evidence, although inconclusive, of some healed trauma consistent with digital penetration and rubbing.
Vivian Reeves, M.S.'s grandmother, testified that Appellant never denied the allegations and, instead, told her he was sick, needed help, and would commit suicide if he had the courage. Theresa Sanders testified that Appellant never denied the allegations, asked for forgiveness, and told her he was an alcoholic and a drug addict and did not know what he was doing. Ronnie Greer, the church organist who had been a close friend to Appellant, testified that he asked for forgiveness and did not deny the allegations. When asked if she thought the girls were making the allegations because their parents were dissatisfied with Appellant's preaching, Ms. Greer answered no. Neal Beall, an active church member, testified that Appellant did not deny the allegations.
Kay Powell, Appellant's wife, testified that he has asked the Sanderses to forgive him for what they thought he had done. She also stated that he did deny the allegations. Appellant's four daughters testified that none of the girls who stayed overnight ever gave any indication that anything was amiss. They explained that no one was moved during the night and there was enough light in the living room to see. Appellant took the stand and denied any inappropriate touching. He stated that M.S. is lying about the allegations and he is the truth teller. He further stated that M.S. believes in the world of the make believe. The defense presented thirteen girls who testified that they had been guests in Appellant's home under the same circumstances as M.S. and had never been assaulted. Thus, the jury had before it each side's fully developed version of the events.
If the jury believed the State's witnesses, particularly M.S., then Dr. Gripon's improper statement would likely have a minimal effect on the jury. The jury was presented with ample evidence, apart from Dr. Gripon's improper statement, to support a conclusion that the allegations against Appellant were true.
Our search of the record revealed no evidence of revenge on the part of M.S. Appellant attempted to paint a picture of M.S.'s parents, Theresa and Frank Sanders, as spiteful people who manipulated their daughters, using them to destroy Appellant. However, there was no evidence that M.S. was motivated by her parents' desire for revenge, if in fact that was the case.
Further, although it unanimously found Appellant guilty of indecency with a child, the jury was deadlocked on the question of guilt or innocence as to the charge of aggravated sexual assault. Therefore, the trial court declared a mistrial on that charge. This indicates the jury did not allow Dr. Gripon's opinion to supplant their own, or they would have convicted him of aggravated sexual assault as well. See Schutz, 63 S.W.3d at 445. Considering the record as a whole, Dr. Gripon's improper testimony that M.S.'s allegations did not appear to be on the basis of revenge had no effect on Appellant's substantial rights and was harmless. We overrule Appellant's third issue.
Rule 404(b) Notice
In his fourth issue, Appellant contends the trial court erred in allowing the State to present testimony of A.B. He complains that the State did not notify him of its intention to present evidence of an alleged extraneous offense through this witness as required by Texas Rule of Evidence 404(b). He further argues that, since the defendant's case never mentioned this witness, her testimony was not true rebuttal evidence.
A.B. was originally asked to testify for the defense. Although she was scheduled to do so, at the last minute, she decided against testifying for Appellant. After the defense rested, the State called her to testify as a rebuttal witness. The court of criminal appeals determined that her testimony was properly admitted as rebuttal of a defensive theory. Powell, 63 S.W.3d at 439. Rule 404(b) notice is only required when the evidence is introduced in the State's case-in-chief. Tex. R. Evid. 404(b); Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App.), cert. denied, 537 U.S. 1005, 123 S. Ct. 495, 154 L. Ed. 2d 403 (2002). As this evidence was not introduced in the State's case-in-chief, no notice was necessary. We overrule Appellant's fourth issue.
Jury Argument
In his fifth issue, Appellant asserts the trial court erred in allowing the prosecutor to state his negative opinion of Appellant in closing argument to the jury. Specifically, he complains of the prosecutor's statement that Appellant was the "most arrogant defendant that has ever sat in that stand and testified."
In closing argument to the jury, the prosecutor reviewed the evidence. He reminded the jury that church leaders declined to remove Appellant from his position as pastor because he had not been proven guilty in a court of law. During the same time period, Appellant was assuring local law enforcement that the situation was being handled within the church. He then made the complained-of statement. Appellant's objection was overruled and his motion for a mistrial was denied. The prosecutor continued: "Why was he so arrogant? Because he managed to fool the leadership of the New Hope Baptist Church, and now he wants to fool you folks."
The general areas of proper jury argument are summation of the evidence, reasonable deduction from the evidence, answer to the argument of opposing counsel, and plea for law enforcement. Walker v. State, 664 S.W.2d 338, 340 (Tex. Crim. App. 1984). If the argument exceeds permissible bounds, no reversible error occurs unless the argument affects the accused's substantial rights. Tex. R. Evid. 404(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). To determine if the State's improper argument affected Appellant's substantial rights, we look to three factors: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Id.
We shall assume without deciding that the prosecutor's remark that Appellant is "the most arrogant defendant that has ever sat in that stand and testified" was improper. We proceed directly to a harm analysis. The prosecutor explained his comment to the jury, based on facts in evidence. He made his point and moved on to other matters. By labeling Appellant "arrogant," the prosecutor did not tell the jury he believed Appellant is guilty. Calling Appellant "arrogant" pales in comparison to other improper argument that has been held to be harmless. See Burns v. State, 556 S.W.2d 270, 285 (Tex. Crim. App. [Panel Op.] 1977) (Where prosecutor referred to defendant as "animal," evidence justified the reference.); Hernandez v. State, 791 S.W.2d 301, 307 (Tex. App.-Corpus Christi 1990, pet. ref'd.) (Prosecutor's reference to defendant as "scum and goat" not proper, but not reversible error.); Norwood v. State, 737 S.W.2d 71, 74 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd) (Prosecutor's reference to defendant as "animal" was error, but not reversible.).
The jury had heard from church members describing how they had loved Appellant and did not want to believe the allegations as well as the complainant and six other girls describing offenses committed by Appellant. It also heard defense testimony from Appellant, his family, and thirteen girls who testified that Appellant had not assaulted them. The jury was able to judge Appellant's demeanor for itself. The complainant's testimony alone was enough to convict Appellant. See Lozano v. State, 958 S.W.2d 925, 928-29 (Tex. App. - El Paso 1997, no pet.). We conclude that the State's comment did not affect Appellant's substantial rights. See Mosley, 983 S.W.2d at 259. We overrule Appellant's fifth issue.
Cross-Examination of Character Witnesses
In his sixth issue, Appellant contends the trial court erred, at the punishment phase, in allowing the prosecutor to ask his character witnesses questions concerning issues other than character. Appellant explains that, over objection, the prosecutor asked whether or not the witnesses agreed with the jury's verdict and what type of punishment the witnesses would want if their children were molested. Appellant asserts the questioning had nothing to do with testing the opinion of the witnesses concerning the defendant's character. He referenced "typical direct and cross-examination," citing the testimony of his first punishment phase witness in its entirety.
Appellant presented eight witnesses at the punishment phase. Their testimony covers almost one hundred pages in the record. Appellant has not identified the specific questions of which he complains or made specific arguments concerning each question. Nor has he noted their location in the record. This court is not required to search the record for what we must presume to be the question Appellant is complaining about. Appellate review extends only to complaints made in accordance with our published rules of appellate procedure which require an appellant to specify the pages in the record where the alleged error can be found. Tex. R. App. P. 38.1(h); Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). Further, although based on the same theory of recovery, the absence of separate references to the record for each contention under this issue results in a forbidden multifarious issue. See Armstrong v. State, 845 S.W.2d 909, 910 (Tex. Crim. App. 1993) (per curiam). Appellant has presented nothing for review. We overrule Appellant's sixth issue.
Conclusion
The probative value of the extraneous offense evidence presented by the six witnesses who described assaults by Appellant outweighs the danger of any unfair prejudice created by the evidence. The trial court did not abuse its discretion in admitting evidence of an excited utterance or the expert testimony by the counselor. It erred in admitting only one of the psychiatrist's statements. However, that error did not affect Appellant's substantial rights and was harmless. Appellant received the Rule 404(b) notice that he was entitled to receive. The State's closing argument to the jury did not constitute harmful error. Finally, Appellant waived any error concerning the State's cross-examination of witnesses at the punishment phase.
We affirm the trial court's judgment.
DIANE DEVASTO
Justice
Opinion delivered December 31, 2003.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)