NUMBER 13-11-00213-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
PAUL WAYNE SMIKAL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 75th District Court
of Liberty County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Paul Wayne Smikal, appeals his conviction for two counts of indecency
with a child by sexual contact, a second-degree felony.1 See TEX. PENAL CODE ANN. §
1
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is before
us on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
21.11 (West 2011). After a jury trial, the trial court sentenced appellant on each count to
ten years of confinement in the Texas Department of Criminal Justice—Institutional
Division. The two ten-year sentences were ordered to run consecutively.
By two issues, appellant argues that the trial court erred: (1) by admitting into
evidence a clinical psychologist’s testimony concerning the frequency of false accusations
of child sexual abuse; and (2) by denying appellant’s request to present evidence
supporting an “alternative perpetrator” defense. We affirm.
I. FACTUAL BACKGROUND
On July 4, 2009, the complainants’ mother left her sons, N.S. and W.S.
(“complainants”), with appellant overnight while she went out to drink.2 Both of the boys
were under seven years of age at the time. When she returned to check on the boys, they
told her that appellant had touched their “wee” and “butt” while they were “butt naked” on
appellant’s bed.
Less than two weeks later, the complainants were brought to Bridgehaven
Children’s Advocacy Center for forensic interviews during which they again disclosed that
appellant had touched them inappropriately. Later the same day, each complainant
received a Sexual Assault Nurse’s Examination at St. Elizabeth Hospital in Beaumont,
Texas.
A St. Elizabeth’s nurse performed the examinations. One of the complainants told
the nurse that “Paul stick something in my butt a piece of wood. He touched my wee,” and
pointed to his penis. The other complainant told her, “Paul been sticking a piece of wood
in my butt. He said, ‘Did that feel good?,’ and I said no, and then I punched him. He
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite
them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See
TEX. R. APP. P. 47.4. We use the pseudonyms “N.S.” and “W.S.” to conceal the identities of the minor
victims.
2
pulled my pants down. He put a nail in my butt, and that hurt more. He’s [sic] been bad to
me all week. He hit me with a stick right here,” and pointed to a bruise on his left thigh.
The State presented outcry evidence through the complainants’ mother. Although
the complainants suffer developmental delays, both complainants testified at trial.3 Don
Neyland of the Liberty County Sheriff’s Office interviewed appellant and, during the
interview, appellant made statements confirming that the complainants had been in his
bedroom, that they were in their underwear, and that they had seen pornographic material
in his bedroom. Appellant told Neyland that the complainants were touching each other
inappropriately.
At trial, the State called Lawrence Thompson, Ph.D., as an expert witness. Dr.
Thompson was a clinical psychologist and the director of the Harris County Children’s
Advocacy Center. He testified concerning his knowledge of and experience with victims of
child sexual abuse, including symptoms of abuse and delay in outcry. Dr. Thompson also
explained to the jury that due to inexperience and lack of vocabulary, a child who has been
anally raped may describe that he was hurt with an object such as a knife.
At the end of the State’s direct examination of Dr. Thompson, the following
exchange occurred concerning the frequency of false accusations of child sexual abuse:
STATE: In all your experience dealing with children and for the
number of years you have and everything that you have
learned through your research, false accusations of child
abuse, child sexual abuse, how common or uncommon
are there actually false accusations?
APPELLANT:4 Judge, I object to this line of questioning. She’s asking
to give credibility to an entire population of allegations.
3
The record shows that due to developmental delays, each complainant acted about a year
younger than his chronological age, but each complainant demonstrated the ability to differentiate between
telling the truth and lying.
4
For the sake of clarity, we note that appellant acted through his trial counsel in addressing the
admissibility of Dr. Thompson’s testimony.
3
STATE: I can limit it to his experience, Your Honor.
COURT: It’s my understanding that the question seeks an opinion
from this witness who I believe is qualified to express an
opinion.
APPELLANT: Is my objection overruled, Your Honor?
COURT: Restate your objection.
APPELLANT: Judge, I am objecting on the grounds that he’s lending
credibility to an entire group of people of which the two
children aren’t members of here.
COURT: Your objection is overruled.
STATE: In your experience, doctor, the instances of false
accusations of child sex abuse, how frequently in your
experience?
DR. THOMPSON: In my clinical experience I could say that I have seen it.
I have seen it in no more than 2 percent of the cases
that I have actually worked with or supervised the work
of others in.
After the State rested, appellant called several witnesses to testify in his defense.
The trial court, however, did not allow appellant to present testimony through the
complainants’ mother suggesting that a friend of hers, who was a convicted sex offender,
committed the offenses.
II. ANALYSIS
A. Testimony Concerning Frequency of False Accusations
By his first issue, appellant argues the trial court erred by allowing Dr. Thompson to
testify that he had only seen false accusations of child sexual abuse in two percent of the
cases in which he had been involved. Appellant argues, without citation to legal authority,
that he preserved this issue for appellate review because “a proper objection was
overruled.” In its response, the State sets forth its position “[a]ssuming” appellant
preserved error.
4
Preservation of error is a systemic requirement that a first-level appellate court
should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698
(Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997)).
Generally, to preserve a complaint concerning the admission of evidence for appellate
review, a timely, specific objection must be made in the trial court. See TEX. R. APP. P.
33.1(a); TEX. R. EVID. 103(a)(1). When, in response to an objection, the State rephrases a
question and no objection is made to the rephrased question, there is no adverse ruling in
the trial court to complain about on appeal. Grant v. State, 345 S.W.3d 509, 513 (Tex.
App.—Waco 2011, pet. ref’d.); Nanez v. State, 179 S.W.3d 149, 151 (Tex. App.—Amarillo
2005, no pet.); Moreno v. State, 1 S.W.3d 846, 857 (Tex. App.—Corpus Christi 1999, pet.
ref’d.).
Appellant failed to preserve his first issue for appellate review because after he
objected to the initial question posed to Dr. Thompson, the State rephrased its question
and appellant did not object to the rephrased question that Dr. Thompson answered.
Accordingly, appellant’s first issue is overruled.
B. Alternative-Perpetrator Defense
By his second issue, appellant argues the trial court erred when it denied him the
opportunity to present evidence suggesting that Dennis Yarter, a convicted sex offender,
committed the offenses. The record shows the trial court excluded the evidence because
it found it irrelevant, particularly because identity was not in issue. Appellant argues the
exclusion of this evidence violated his right to due process.
A trial court’s ruling on the admissibility of evidence is reviewed under an abuse-of-
discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
“’Relevant evidence’ means evidence having any tendency to make the existence of any
5
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” TEX. R. EVID. 401; Blakeney v. State, 911
S.W.2d 508, 513 (Tex. App.—Austin 1995, no pet.) (discussing relevance).
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment .
. . or in the Compulsory Process Clauses of the Sixth Amendment, . . . the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense.”
Kelly v. State, 321 S.W.3d 583, 592 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). But to be admissible, evidence of
an alleged alternative perpetrator must be sufficient, alone or in combination with other
evidence in the record, to show a nexus between the crime charged and the alleged
alternative perpetrator. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002);
Michaelwicz v. State, 186 S.W.3d 601, 617 (Tex. App.—Austin 2006, pet. ref’d.). Weak,
speculative evidence that another person may have committed the crime is inadmissible
and poses a great threat of confusing the issues in a trial. See Wiley, 74 S.W.3d at 406–
07; Michaelwicz, 186 S.W.3d at 618.
In Wiley, the defendant was charged with burning down his own restaurant. 74
S.W.3d at 403, 405. Wiley sought to introduce evidence that another person, a known
“fire-starter,” had been ejected from the restaurant a few days prior to the fire for acting
crazy, striking matches, and removing his shirt. Id. He also wanted to present evidence
that the “fire-starter” was seen across the street from the restaurant when it burned. Id. at
405. The record, however, showed this alleged alternative perpetrator likely lacked the
intellectual capacity to plan and execute the fire. Id. at 404. So, Wiley instead sought to
raise the possibility this third person may have acted in concert with another arsonist. Id.
at 407.
6
The Texas Court of Criminal Appeals concluded the trial court properly excluded
Wiley's proffered evidence under Texas Rule of Evidence 403. See id.; TEX. R. EVID. 403.
The court explained admission of the speculative alternative-perpetrator evidence “would
have forced the State to attempt to disprove the nebulous allegation that perhaps [the
other individual] was somehow involved as an assistant to some unknown sophisticated
arsonist.” Wiley, 74 S.W.3d at 407. Such evidence would have resulted in a “side trial,”
turning the jury’s focus away from deciding the only issue in the case—whether Wiley had
set the fire—and toward speculating whether an individual who was not on trial may have
been guilty. Id.
In an offer of proof outside the jury’s presence, appellant presented testimony from
the complainants’ mother concerning Dennis Yarter. However, none of the testimony
linked Yarter to the offenses for which appellant was on trial. The mother testified that
Yarter was a friend of hers and a handyman with whom she had worked in the past. The
mother testified she knew Yarter was a convicted sex offender. The mother explained that
she was required to take a special “chaperone class” because she was in regular contact
with Yarter and had children of her own. She also testified generally that she spoke to her
children about inappropriate touching and told them to tell her about it if it occurred.
The mother admitted that for about two days and two nights, she stayed with her
sons in a recreational vehicle (“RV”) on Yarter’s property, but denied that she ever left her
sons alone with Yarter. The mother testified that her sons did not leave her sight when
they visited Yarter. She also testified that Yarter did not possess any pornographic
materials and that there were no pornographic materials in the RV. The mother testified
she could not recall whether she and her sons stayed with Yarter immediately prior to July
4, 2009, when she left her sons with appellant.
7
The mother admitted that she left her sons with appellant so that she could go drink
in Yarter’s RV. She also admitted that she often borrowed Yarter’s truck though this left
Yarter without any transportation. After the offenses at issue in this case occurred, the
mother was still in contact with Yarter, and she drove his truck to appellant’s home when
she came to pick her sons up from appellant. She further testified that Yarter’s parole was
revoked because he was in proximity to her sons, which violated his parole conditions.
We cannot conclude that the trial court abused its discretion by excluding the
testimony about Yarter because the testimony is irrelevant to the issue of whether
appellant committed the offenses with which he was charged. Nothing links Yarter to the
offenses for which appellant was being tried. See TEX. R. EVID. 401; Wiley, 74 S.W.3d at
406–07; Michaelwicz, 186 S.W.3d at 618. We overrule appellant’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
______________________________
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of April, 2012.
8