Affirmed and Memorandum Opinion filed November 23, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00868-CR
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KENNETH WAYNE HUNTER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 940,741
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M E M O R A N D U M O P I N I O N
Appellant Kenneth Wayne Hunter was convicted of aggravated sexual assault of a child. The jury assessed punishment at twenty-five years= imprisonment and a $10,000 fine. In four issues, appellant argues that the trial court erred in admitting testimony of the State=s expert witness, excluding appellant=s polygraph results, and overruling appellant=s motion for new trial based on alleged exculpatory evidence. Appellant also claims he received ineffective assistance of counsel at trial. We affirm.
I. Factual and Procedural Background
Appellant is the adoptive father of Jane and Mary,[1] his wife=s nieces. Jane and Mary both moved to the United States from the Philippines when they were very young; Mary moved when she was three or four years old, and her sister Jane followed when Jane was five years old. When Jane was sixteen and Mary was eighteen, Jane ran away from home. Appellant and his wife had Mary call several people to try to locate Jane. Among the people Mary called was Mary=s former high school teacher, Cindy Eschenburg, who offered to talk to Mary because Mary sounded upset on the phone. Appellant permitted Eschenburg and another teacher, Marty Hyden, to take Mary to a local restaurant to talk about Jane. At the restaurant, Mary became hysterical and told Eschenburg and Hyden that appellant had sexually abused her and Jane.
The next day, Eschenburg called the police and Child Protective Services. An investigation ensued in which the police documented a long list of sexual offenses appellant allegedly committed against both girls during the years they lived with him. Appellant was eventually charged with a single instance of digitally penetrating Mary=s vagina in 1996. Before trial, the State notified appellant it intended to introduce evidence of other offenses against Jane and Mary that were uncovered by the investigation.
At trial, the State called several witnesses. Mary testified that when she was four or five years old, appellant made her touch his penis under the covers of his bed. When she was between six and nine years old, he would put her on his lap, reach under her clothes, and insert his finger into her vagina. Mary said one time appellant=s wife caught and yelled at them, after which appellant stopped for two or three years. Then, when appellant=s wife was on a trip, appellant touched her again. Mary stated that her aunt, who was staying with them at the time, may have called the police, who arrived shortly after appellant touched her. However, Mary was uncertain who called them or if her aunt saw appellant touch her. Later, when Mary was nine or ten years old, appellant approached her from behind while she was washing dishes, unzipped her pants, and touched her vagina. Jane walked into the kitchen and saw what was happening, then left the room and did not tell anyone what she had seen. Appellant last touched Mary when she was eighteen, on an occasion when the two of them were alone in the house. Appellant told Mary to go to his room and she complied. Appellant followed her, removed her pants, and inserted his penis into her vagina with some difficulty because it was not erect.
The State called other witnesses at trial. Jane testified she saw appellant fondle Mary in the kitchen and told them she would tell on them but did not. According to Jane, when she was five or six years old, appellant would put her on his lap, move his hand under her clothes, and insert his finger into her vagina. She said appellant tried unsuccessfully to force his penis, which was Areally limp and soft,@ into her vagina. She also testified that while they were in the bathroom, appellant pulled down her shorts and licked her vagina. Jane said the sexual abuse continued until she ran away from home. The State also called Dr. Robbie Burnett, a clinical psychologist who had worked with Jane and Mary. Dr. Burnett testified that Jane and Mary were former patients and exhibited symptoms Aconsistent with@ having been sexually assaulted.
Appellant took the stand at trial and denied ever having sexually assaulted either Mary or Jane. He attempted to introduce the results of a polygraph examination he had taken that indicated he was not being deceptive when he denied sexually assaulting Jane and Mary. However, the trial court excluded the polygraph evidence. After appellant was convicted, he filed a motion for new trial claiming the State had withheld exculpatory evidence and that he had received ineffective assistance of counsel. After a hearing, the trial court denied appellant=s motion, and this appeal followed.
II. Issues and Analyses
A. Did the trial court abuse its discretion in admitting expert testimony of the clinical psychologist?
In his first issue, appellant claims the trial court erred in overruling his objection to Dr. Burnett=s expert testimony that Mary and Jane displayed characteristics Aconsistent with@ sexual abuse victims. Appellant argues that the State failed to produce any foundation for Dr. Burnett=s testimony and used her as a Ahuman polygraph@ to bolster the testimony of Jane and Mary.
We review a trial court=s decision to admit or exclude scientific expert testimony under an abuse-of-discretion standard. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). Thus, we will uphold the trial court=s decision as long as it is within the zone of reasonable disagreement, given the evidence presented and the requirements of Rule 702 of the Texas Rules of Evidence. Sexton, 93 S.W.3d at 99.
In 1992, the Court of Criminal Appeals disavowed the Ageneral acceptance@ test of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), and held that Texas Rule of Evidence 702 governs the admissibility of expert testimony. Kelly v. State, 824 S.W.2d 568, 571B72 (Tex. Crim. App. 1992). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Tex. R. Evid. 702. In Kelly, the Court of Criminal Appeals held that, to satisfy Rule 702, novel scientific evidence must meet a three-pronged test showing that (1) the underlying scientific theory is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied on the occasion in question. 824 S.W.2d at 573. Kelly also listed seven nonexclusive factors that could aid the trial court in determining whether the test had been met.[2] Id. The Court of Criminal Appeals later stated that the Kelly standard is virtually identical to the standard in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). See Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996). Kelly was later extended to include all scientific evidence. Hartman v. State, 946 S.W.2d 60, 62B63 (Tex. Crim. App. 1996).
In Nenno v. State, the Court of Criminal Appeals recognized the difficulty of demanding rigid application of the Kelly test to Asoft@ sciences that rely on experience and training as opposed to the scientific method of the Ahard@ sciences.[3] 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1998). Our high court announced a less rigorous Atranslation@ of Kelly for Asoft@ sciences in which the relevant questions are (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert=s testimony is within the scope of that field, and (3) whether the experts= testimony properly relies upon and/or utilizes the principles involved in the field. Id. The testimony of a clinical psychologist like Dr. Burnett qualifies as Asoft@ science. See Weatherred v. State, 15 S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000). Thus, Nenno governs this case.
The trial court conducted a hearing on Dr. Burnett=s qualifications as an expert. In the hearing, Dr. Burnett testified that she is a licensed professional counselor, has a Ph.D. in psychology, and has specialized in victims of sexual abuse and trauma for two decades. The State specifically questioned Dr. Burnett on the Nenno factors, and she testified that psychology and clinical counseling of sexual abuse victims are legitimate areas of expertise and that the subject matter of her testimony was within and relies upon the principles involved in those fields. She further explained her general methodology for counseling sexual abuse victims and testified that she was familiar with both Mary and Jane because they had been her patients for about ten months. After hearing from both parties at length, the trial court held the State had met the requirements of Daubert, Kelly, and Nenno. We conclude that this ruling was within the zone of reasonable disagreement.
Appellant contends the State used Dr. Burnett as a Ahuman polygraph@ and that her testimony impermissibly bolstered the testimony of Jane and Mary. An expert may not testify that a particular witness is being truthful. See Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). Rather, expert testimony is limited to situations in which the expert=s knowledge and experience on a relevant issue are beyond that of an average juror. Id. at 710B11. Dr. Burnett did not testify that Jane and Mary were telling the truth. Instead, she testified that based on her extensive experience dealing with sexual abuse victims, the behavior demonstrated by Jane and Mary were Aconsistent@ with sexual abuse. Texas courts have permitted such testimony. See Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (allowing expert testimony on Acharacteristics@ of sexually abused children when expert did not directly testify victims were sexually abused or telling the truth); Tamplin v. State, No. 14-01-01253-CR, 2002 WL 31662560, at *3 (Tex. App.CHouston [14th Dist.] Nov. 27, 2002, pet. ref=d) (not designated for publication) (AExpert testimony concerning behavioral characteristics typically exhibited by victims of sexual abuse and describing behavior observed in complaining witnesses is not improper merely because it embraces the ultimate issue of whether complainants were telling the truth.@). Thus, the trial court did not abuse its discretion when it allowed Dr. Burnett=s testimony. Accordingly, we overrule appellant=s first issue.
B. Did the trial court abuse its discretion in refusing to admit appellant=s polygraph evidence?
In his second issue, appellant claims the trial court erred in denying his motion to admit polygraph evidence as direct or rebuttal evidence. He argues this exclusion violates his Sixth Amendment right to present a defense. Texas courts have long held that polygraph evidence is inadmissible for all purposes. See Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1991); Lee v. State, 455 S.W.2d 316, 321 (Tex. Crim. App. 1970). Appellant invites us to reconsider this issue, citing a decision by the United States Court of Appeals for the Fifth Circuit and a subsequent dissenting opinion by Justice Meyers of the Texas Court of Criminal Appeals. See United States v. Posado, 57 F.3d 428 (5th Cir. 1995); Landrum v. State, 977 S.W.2d 586 (Tex. Crim. App. 1998) (Meyers, J., dissenting). In Posado, the Fifth Circuit held that a per se rule against polygraph evidence is no longer viable in light of Daubert and recent advances in polygraph technique.[4] Posado, 57 F.3d at 432B33. The Fifth Circuit did not endorse polygraph evidence, but Amerely remove[d] the obstacle of the per se rule against admissibility.@ Id. at 434. Three years after Posado, the Texas Court of Criminal Appeals declined to reconsider its per se rule against the admissibility of polygraph evidence in Landrum v. State. 977 S.W.2d at 586. In his dissenting opinion, Justice Meyers argued that Texas should follow the Fifth Circuit in reconsidering polygraph evidence in light of Daubert, Kelly, and Posado and advances in polygraph technique. Id. at 586B87 (Meyers, J., dissenting).[5] Since Landrum, the Court of Criminal Appeals has suggested that polygraphs may be subject to a Daubert analysis, but it has not explicitly overruled the per se rule against admissibility. See Ross v. State, 133 S.W.2d 618, 625B26 (Tex. Crim. App. 2004). As an intermediate appellate court, we are bound by controlling authority from the Court of Criminal Appeals. See Zarychta v. State, 44 S.W.3d 155, 162 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Although appellant raises an interesting argument, we must follow precedent and leave any considerations of a change in the law to the Court of Criminal Appeals. Based on existing case law, we overrule appellant=s second issue.
C. Did the trial court abuse its discretion in denying a new trial based on allegedly exculpatory evidence?
In his third issue, appellant claims the trial court erred in overruling his motion for new trial because the State allegedly withheld material exculpatory evidence. We review the trial court=s decision to grant or deny a motion for new trial under an abuse-of-discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). When the State withholds evidence favorable to the defendant, due process is violated if the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). However, there is no general right to discovery in a criminal case, and Brady does not create one. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). To invoke Brady, the accused must present evidence that (1) the State failed to disclose evidence, regardless of the prosecution=s good or bad faith, (2) the withheld evidence is favorable to him, and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). The mere possibility that undisclosed evidence may have helped the defense or affected the trial=s outcome does not establish Amateriality@ in the constitutional sense. Id. Whether the evidence is material is viewed in the context of the overall strength of the State=s case. Id. at 613. To preserve error in making such a claim, a defendant must make a complaint to the trial court in a timely fashion. Tex. R. App. P. 33.1 (a)(1); Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). To be timely, the complaint must be made as soon as the grounds for complaint are apparent or should be apparent. Wilson, 7 S.W.3d at 146.
Appellant claims the State notified him that it intended to introduce extraneous acts of anal and vaginal penetration of both Mary and Jane and then failed to disclose that Jane and Mary allegedly changed their stories and said he never gained an erection. Appellant claims he was surprised by these witnesses= trial testimony, which he claims undermined his defense strategy of showing that he was medically incapable of gaining an erection and thus could not have penetrated either of them with an erect penis, as he believed they would testify. However, appellant failed to object when Mary and Jane testified that his penis was limp. Rather, he complained for the first time in his motion for new trial. Thus, his complaint was untimely, and the trial court did not err in denying his motion for a new trial. See Tex. R. App. P. 33.1(a)(1); Wilson, 7 S.W.3d at 146; State v. Fury, No. 01-04-00906-CR, __ S.W.3d __, 2005 WL 2670249, at *5 (Tex. App.CHouston [1st Dist.] Oct. 20, 2005, no pet. h.) (ABy waiting to raise this issue for the first time in his motion for new trial, [defendant] either waived any Brady error or failed to show that any Brady error prejudiced him.@).
Furthermore, appellant has failed to show the evidence was exculpatory. An erection is not a requisite for penetration. See Vernon v. State, 841 S.W.2d 407, 409B10 (Tex. Crim. App. 1992); Wilson v. State, 905 S.W.2d 46, 48 (Tex. App.CCorpus Christi 1995, no pet.) (AIf appellant placed his non-erect penis inside complainant, penetration still occurred.@). Thus, evidence of appellant=s inability to gain an erection would not necessarily be exculpatory. We overrule appellant=s third issue.
D. Did the trial court err in rejecting appellant=s claim of ineffective assistance of counsel?
In his fourth issue, appellant maintains he received ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
Although the Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy, that court has been inconsistent in describing the legal standard by which we should determine whether a particular case constitutes such a rarity. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy); Andrews, 159 S.W.3d at 104 (Keller, P.J., dissenting) (stating that the Court of Criminal Appeals has been inconsistent in its approaches to ineffective assistance claims on direct appeal based on a silent record and indicating that the court=s approach in Andrews is inconsistent with its approach in Freeman v. State, 125 S.W.3d 505 (Tex. Crim. App. 2003)); see also Storr v. State, 126 S.W.3d 647, 655B58 (Tex. App.CHouston [14th Dist.] 2004, pet ref=d) (Frost, J., dissenting) (stating that court should follow latest guidance from the Court of Criminal Appeals in Freeman). The Court of Criminal Appeals recently indicated that appellate courts should find ineffective assistance as a matter of law if no reasonable trial strategy could justify trial counsel=s conduct, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as she did. See Andrews, 159 S.W.3d at 102. Shortly thereafter, the Court of Criminal Appeals returned to an earlier formulation and stated that, absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, No. PD-1882-03, __ S.W.3d __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Accordingly, we follow the legal standard from Goodspeed.
Appellant argued in his motion for new trial that he received ineffective assistance of counsel because the trial court refused to reveal the identity of jurors for a potential jury misconduct investigation. This claim fails because it is based on the trial court=s ruling and not on the conduct of appellant=s trial counsel.
On appeal, appellant also claims ineffective assistance of counsel based upon his trial attorney=s failure to interview Jane and Mary. In support of this assertion, appellant points only to an affidavit filed by one of appellant=s trial attorneys in support of his motion for new trial. In the affidavit, appellant=s trial counsel claimed the State withheld exculpatory evidence that undermined the defense. The affidavit contains nothing which addresses whether appellant=s defense counsel interviewed Jane and Mary. Therefore, we reject this claim of ineffective assistance because appellant has not shown that his defense counsel failed to interview Jane and Mary.
Further, even if appellant=s counsel did fail to interview Jane and Mary, appellant has not shown a reasonable probability that interviewing them would have affected the outcome of the trial. See Strickland, 466 U.S. at 694. If Jane and Mary did change their stories at trial, as appellant alleges, no evidence shows that interviewing them prior to trial would have caused him any less surprise when they testified. Additionally, as discussed in the previous section addressing appellant=s Brady claim, appellant=s inability to gain an erection is not necessarily exculpatory and thus was unlikely to affect the trial=s outcome. Finally, the testimony by Jane and Mary about the limp state of appellant=s penis was not an element of the crime charged, which was digital penetration of Mary=s vagina. There was sufficient evidence at trial to support a conviction for that charge. For these reasons, appellant has failed to show a reasonable probability that the result of the trial would have been different but for his trial counsel=s alleged failure to interview Jane and Mary. Accordingly, we overrule appellant=s fourth issue.
Having overruled all of appellant=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed November 23, 2005.
Panel consists of Chief Justice Hedges and Justices Anderson and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] For purposes of this opinion, we have adopted AJane@ and AMary@ as pseudonyms.
[2] Those factors include (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained, (2) the qualifications of the expert(s) testifying, (3) the existence of literature supporting or rejecting the underlying scientific theory and technique, (4) the potential rate of error of the technique, (5) the availability of other experts to test and evaluate the technique, (6) the clarity with which the underlying scientific theory and technique can be explained to the court, and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.
[3] The Ahard@ and Asoft@ sciences were distinguished in Weatherred v. State, 15 S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000). There, the Court of Criminal Appeals, citing The New Columbia Encyclopedia 2450 (1975), described Ahard sciences@ as Aareas in which precise measurement, calculation, and prediction are generally possible, including mathematics, physical science, earth science, and life science.@ Id. By contrast, Asoft sciences@ are Agenerally thought to include such fields as psychology, economics, political science, anthropology, and sociology.@ Id.
[4] The Fifth Circuit held that polygraph evidence is subject to a Daubert analysis. Id. at 435. On remand, the district court held the polygraph evidence in Posado inadmissible under both Federal Rules pf Evidence 702 and 403. United States v. Ramirez, No. CRIM. H-93-252, 1995 WL 918083, at *3B4 (S.D. Tex. Nov. 17, 1995).
[5] Justice Meyers pointed to the United States Supreme Court=s decision to hear argument in United States v. Scheffer, a military case that involved a Sixth Amendment argument against per se inadmissibility of polygraph evidence similar to appellant=s claim. Id. at 587 n.2 (Meyers, J., dissenting). However, the Supreme Court subsequently upheld the per se exclusion of polygraph evidence in court martial proceedings and held that such exclusion was not an unconstitutional infringement on an accused=s right to present a defense. United States v. Scheffer, 523 U.S. 303, 314B15 (1998).