Affirmed and Memorandum Opinion filed June 3, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-02-01022-CR
NO. 14-02-01023-CR
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TIMOTHY SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause Nos. 01CR2001 & 01CR2002
M E M O R A N D U M O P I N I O N
The jury convicted appellant of two counts of indecency with a child, and the trial court assessed punishment at 40 years= confinement in the Texas Department of Criminal Justice, Institutional Division. In six points of error, appellant contends (1) the trial court erred in sustaining a challenge for cause to a juror, (2) the trial court erred in admitting hearsay testimony by an alleged outcry witness, (3) the trial court erred in denying appellant=s motion for mistrial after improper impeachment of a witness, (4) the trial court erred in admitting opinion testimony by a non-expert witness, (5) the trial court erred in denying appellant=s motion for a mistrial after the jury indicated it was deadlocked, and (6) the evidence at trial is insufficient to sustain the conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The complainants, K.B. and B.B., are sisters and were young children when their mother was killed in a car accident. K.B. went to live with Betty Dalco and B.B. went to live with Shentelle Bobino. At the time of the charged offenses, appellant was living with and dating Bobino.
In July of 2001, K.B. spent a week at Bobino=s house in League City. On one of those nights, K.B. slept in a T-shirt and underwear. According to the testimony, appellant went into the room where K.B. was sleeping, twice touched K.B.=s genitals through her panties with his hand, and left when she woke. K.B. was eleven years old at the time.
Also according to the testimony, around the same date appellant spread B.B.=s legs and touched her genitals with his hand while masturbating. B.B. was six years old at the time.
K.B. returned home to Beaumont after the trip, and B.B. accompanied her to spend a week there. The morning after arriving in Beaumont, both K.B. and B.B. told Dalco about appellant touching them. Dalco had her sister contact Child Protective Services.
Appellant was subsequently arrested and charged with two counts of indecency with a child by contact and one count of indecency with a child by exposure. Appellant was convicted on both counts of indecency with a child by contact and acquitted on the count of indecency with a child by exposure.
ANALYSIS
I. Challenge for Cause to a Juror.
In his first point of error, appellant contends the trial court erred in sustaining a challenge for cause to a juror. The State challenged the juror based on the Aone witness rule,@ which appellant claims was no more than a pretext because the State clearly intended to call more than one witness.
The grant of a challenge for cause will not be overturned on appeal absent an abuse of the trial court=s discretion, and we give great deference to the trial court. Banda v. State, 890 S.W.2d 42, 53B54 (Tex. Crim. App. 1994). A trial court should liberally grant challenges for cause. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Because a defendant=s rights go to those who serve on a jury, not those who are excused, the erroneous excusing of a juror will call for reversal only if the record shows the defendant was deprived of a lawfully constituted jury.[1] Id. at 393B94; see also Erazo v. State, 93 S.W.3d 533, 535 (Tex. App.CHouston [14th Dist.] 2002, pet. granted).
Even assuming the trial court abused its discretion in granting the challenge for cause, appellant has not met his burden of demonstrating that he was deprived of a lawfully constituted jury. Appellant has not met his burden because he failed to present any evidence that the jurors who convicted him were not qualified to do so. See Jones, 982 S.W.2d at 394. We overrule appellant=s first point of error.
II. Hearsay Testimony by an Outcry Witness.
In his second point of error, appellant contends the trial court erred in admitting hearsay testimony by an alleged outcry witness, Betty Dalco. Appellant argues that the State failed to provide a written summary of Dalco=s testimony as required by the Texas Code of Criminal Procedure, Article 38.072, section 2(b).
However, appellant never objected on this ground at trial. When discussing the admissibility of the testimony, appellant=s counsel stated, AThe only question I think outstanding is whether Ms. Dalco was the first person to whom the statement concerning [B.B.] was made . . . .@ Appellant has not preserved his complaint for appellate review. See Tex. R. App. P. 33.1(a); compare Gay v. State, 981 S.W.2d 864, 867 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (AIn the hearing and during the trial, the appellant=s counsel continuously objected that the outcry witness=s testimony did not comport with article 38.072, indicating that the summary did not provide enough detail.@). We overrule appellant=s second point of error.
III. Impeachment of the State=s Own Witness.
In his third point of error, appellant contends the trial court erred in denying appellant=s motion for mistrial after improper impeachment of Shentelle Bobino. The impeachment testimony consisted of Bobino=s statement that she was arrested for aiding and abetting appellant.[2] Appellant alleges the State called Bobino as a subterfuge to get otherwise inadmissible evidence before the jury.
However, appellant never objected on the ground that Bobino was called as a subterfuge at trial. A defendant must specifically object at trial that the impeachment was merely a subterfuge by which to introduce inadmissible evidence in order to preserve that argument for appeal. Garcia v. State, 887 S.W.2d 862, 874 (Tex. Crim. App. 1994). We overrule appellant=s third point of error.
IV. Opinion Testimony by a Non-expert.
In his fourth point of error, appellant contends the trial court erred in allowing opinion testimony by a non-expert witness. Although the witness was admittedly qualified as an expert licensed physician=s assistant, appellant argues that she was not qualified to rely on a statement that Bobino intended to marry appellant in making her diagnosis regarding B.B.[3]
We review the decision of the trial court to admit expert testimony for an abuse of discretion. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). To be admissible, expert testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. Tex. R. Evid. 702. Expert testimony that constitutes a direct opinion on the truthfulness of a child complainant=s allegations does not assist the trier of fact. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Experts, such as psychologists, are not more qualified to determine the credibility of witnesses than the trier of fact. Yount v. State, 872 S.W.2d 706, 710 (Tex. Crim. App. 1993).
The witness was not entitled to testify as to the truthfulness of B.B.=s allegations or Bobino=s statement that she intended to marry appellant; nor did she do so. She did explain that Bobino=s statement was part of the history provided to her and that A[e]very bit of history provided to [her] was taken into account to make a diagnosis.@ Appellant contends that the witness lacked expertise and scientific authority for considering Bobino=s statement in making her diagnosis.
The witness later clarified that she did not base her diagnosis on Bobino=s statement, but rather on outcry testimony by B.B.[4] It is conceivable that the witness could have examined Bobino=s statement, along with all of the other history provided, and determined that it was not relevant to her diagnosis. The trial court would thus not have abused its discretion in accepting the witness=s explanation that she considered but did not rely on Bobino=s statement. We overrule appellant=s fourth point of error.
V. Jury Deadlock.
In his fifth point of error, appellant contends the trial court erred in denying his motion for a mistrial after the jury twice indicated that it was deadlocked. After each indication of deadlock, the court instead responded, APlease continue your deliberations and try to reach a verdict.@
A trial court may in its discretion discharge a jury Awhere it has been kept together for such time as to render it altogether improbable that it can agree.@ Tex. Code Crim. Proc. art. 36.31. The length of time a jury may be held for deliberations rests within the discretion of the trial court. Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989). Whether the trial court abused its discretion is determined in light of the nature of the case, the length of the trial, and the volume of evidence submitted to the jury. See Jackson v. State, 17 S.W.3d 664, 676B77 (Tex. Crim. App. 2000). Ellis v. State, 99 S.W.3d 783, 787 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). There is no limit on the length of time a jury may deliberate. Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999).
In this case, appellant was charged with three felonies committed against two child complainants. The jury ultimately convicted him of two of the felonies and acquitted him of the third. Seven witnesses testified, including the two child complainants and two expert witnesses. The testimony lasted approximately six hours. The record indicates that the jury twice requested clarifications regarding evidence. There is no indication of when these requests were made, but they indicate that the jury was actively considering the evidence at some point during deliberations. The jury deliberated for slightly less than four hours before the first indication of deadlock, about eight hours before the second indication of deadlock, and about ten hours before reaching a verdict. Considering the nature of the case, the length of the trial, and the volume of evidence presented, the trial court did not abuse its discretion in determing that a verdict was not altogether improbable. We overrule appellant=s fifth point of error.
VI. Sufficiency of the Evidence.
In his sixth point of error, appellant contends the evidence is insufficient to sustain the conviction. Appellant contends that the evidence did not demonstrate that his hand came into contact with the complainants= genitals and that Dalco=s testimony both contradicted and embellished the complainants= testimony.
In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Sells v. State, 121 S.W.3d 748, 753B54 (Tex. Crim. App. 2003); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003).
In evaluating a factual sufficiency challenge, we look at all of the evidence without the prism of Ain the light most favorable to the prosecution,@ and we will reverse a conviction only if the evidence supporting guilt is so obviously weak or so against the great weight and preponderance of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Sells, 121 S.W.3d at 754.
K.B. testified that appellant touched her Aprivate part@ with his hand,[5] and B.B. testified that appellant touched her Aprivate@ with his hand.[6] Although they used the terms Aprivate part@ and Aprivate@ instead of a more technical description, child victims are not expected to testify with the same clarity expected of mature and capable adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Additionally, K.B. testified that she was touched on top of her panties. The record is silent as to where K.B. pointed when she was asked where she was touched, but the record indicates that B.B. pointed between her legs when asked the same question.
Although K.B. testified that she was touched on top of her panties and B.B. was uncertain whether she was touched on top of her clothes or underneath her clothes, Asexual contact@ as defined by the Texas Penal Code Ainclud[es] touching through clothing.@ Tex. Penal Code ' 21.11(c)(1). This evidence was sufficient for a rational trier of fact to have found that appellant touched the complainants= genitals with his hand.
Appellant also contends that the testimony of the complainants was both contradicted and embellished by Dalco=s testimony. Appellant does not cite any specific contradictory testimony by Dalco, and our review of the record does not reveal any such testimony that so greatly outweighs the testimony by the complainants as to render the conviction clearly wrong and manifestly unjust. Appellant also does not cite to any specific embellishing testimony by Dalco, nor does appellant explain how the embellishment of the complainants= testimony would render that testimony legally or factually insufficient. We overrule appellant=s sixth point of error.
We affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed June 3, 2004.
Panel consists of Justices Fowler, Edelman, and Smith.[7]
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The analysis differs when a juror is excused based on race, sex, or views on the death penalty. See Feldman v. State, 71 S.W.3d 738, 749 (Tex. Crim. App. 2002) (A[W]hether a venireperson was properly challenged based upon her views of the death penalty is a matter of constitutional dimension and requires a different analysis.@); Gibson v. State, 117 S.W.3d 580 (Tex. App.CCorpus Christi 2003, no pet.) (ABatson error is not subject to a harm analysis.@). However, none of those situations is present in this case.
[2] On direct examination, Bobino testified as follows:
Q. Do you recall the police coming to your house?
A. Yes.
Q. Tell the jury what happened on that occasion?
A. Police came up to my house. I can=t remember the exact date, they arrested myself and [appellant].
Q. What did they arrest you for?
A. For aiding and abetting.
[3] We note that the first page of the expert=s report, which was admitted without objection, contains the notation, ADX: (1) child sexual abuse.@ On cross-examination, the expert explained that ADX@ was an abbreviation for Adiagnosis.@ It is therefore possible that appellant waived his right to complain about the admissibility of the expert=s diagnosis.
[4] The witness testified as follows:
Q: So, how could you use a science or field that is not within your field of expertise in making a diagnosis?
A: That bit of information, she did indicate to me that she still intends to marry him is not what made my diagnosis. My diagnosis was made on history that the child had outcried. Fondling her genitals on more than one occasion and [Bobino] had offered some history of sexual acting out. Those are the historical information that was used to make a diagnosis.
[5] K.B. testified as follows:
Q. What did [appellant] do?
A. He touched me where I wasn=t supposed to be touched.
Q. What part of your body was that?
A. Private part.
Q. Can you point to that area of the body and show the jury what you=re talking about?
A. Right here.
. . .
Q. What did he touch you with?
A. His hand.
. . .
Q. When he touched you in the bedroom on your private parts did he touch you on top of you [sic] panties or underneath your panties?
A. On top.
[6] B.B. testified as follows:
Q. [B.B.], where did [appellant] touch you?
A. On my private.
. . .
Q. And what part of your body is your private, can you point to it for me just to show where you=re talking about?
A. Right here.
Q. Are you pointing down sort of between your legs, that area?
A. Yes.
. . .
Q. And what did [appellant] touch you with when he touched you on your private part?
A. I think his hand.
. . .
Q. [B.B.], do you know if he touched you on top of your clothes or did he touch you underneath your clothes?
A. No. I don=t know. No.
Q. You don=t remember?
A. No.
[7] Senior Justice Jackson B. Smith, Jr. sitting by assignment.