Opinion issued January 20, 2011
In The
Court of Appeals
For The
First District of Texas
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No. 01-09-00433-CR
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Eduardo santamaria, Appellant
V.
The State of Texas, Appellee
On Appeal from the 183rd District Court
Harris County Texas
Trial Court Cause No. 1143377
MEMORANDUM OPINION
Appellant, Eduardo Santamaria, appeals a judgment convicting him for indecency with a child by contact. See Tex. Penal Code Ann. § 21.11 (Vernon Supp. 2009). Appellant pleaded not guilty. A jury found appellant guilty and assessed his punishment at four years, six months in prison. In three issues, appellant contends that the trial court erred in denying his motion for a mistrial when an expert witness for the State improperly testified the complainant was credible and that the evidence is legally and factually insufficient to support appellant’s conviction. We conclude that the trial court’s instruction to disregard the improper comment was sufficient to cure any error resulting from improper testimony and that the evidence is sufficient to support appellant’s conviction. We affirm.
Background
Around 2006, when the complainant was approximately eleven years of age, she and her sister lived in their father’s house in a room shared with their stepsister. The room held a bunk bed; the complainant and her sister slept on the larger bottom bunk, and their stepsister slept on the top bunk. Around 2 or 3 a.m. on the day of the incident, the complainant awoke when her sister got up to use the bathroom. The complainant quickly fell back asleep but awoke again when she heard the door open, thinking it was her sister returning to bed. The complainant felt somebody get into bed with her. She then felt a man’s hand on her leg moving up, outside of her shorts, to her hip. Scared, she moved away to “let her [sic] know that I’m here,” causing the man to momentarily back off and just lie in bed next to her for a while. Soon afterwards, however, the man returned his hand to her hip and proceeded to move it underneath her shorts, placing his hand on her genitalia. His hand stayed there until the complainant’s sister returned from the bathroom and started questioning and arguing with the man in the bed. At this point, the complainant knew that the man was appellant, her uncle.
The complainant did not tell her sister about the touching by appellant because she feared that her sister would be angry with her. It was not until approximately two years later, when the sisters were living with their mother, that the complainant finally told her sister. The complainant said that at the time, they were sitting outside on the porch. The complainant later told her mother while she was riding in the car with her mother and her mother’s boyfriend, who was driving to drop off her mother at work. A few days later, the complainant’s mother took her to the police station to report the matter.
The complainant’s sister testified at trial that she did not recall an incident where she found appellant in bed and questioned him. She recalled only one incident where appellant came into their bedroom late one night at around 12 or 1 a.m. She and the complainant were in bed, and the door opened to reveal her uncle, but she assumed he was just checking up on them and went back to sleep. Additionally, she remembers that while they were inside her room and not out on the porch, the complainant told her about the incident where appellant touched the complainant. Lastly, she testified that the complainant told their mother while at home, not in the car.
The complainant’s mother testified that the complainant told her about the incident while they were in the car driving to the sisters’ father’s house, not to drop her off at work. According to the complainant’s mother, the only people in the car at the time were the complainant, the complainant’s sister, and herself. Upon hearing the complainant’s account of the incident, she immediately pulled over and called to report it. She then dropped off the sisters at their father’s house.
The investigating officer, Houston Police Officer Bailey, testified that she met with the complainant, the complainant’s sister, and their mother. When asked on direct examination about the complainant’s demeanor during the initial interview, Bailey claimed, “I found her to be a credible child[.]” Defense counsel immediately objected, and the trial court sustained the objection and instructed the jury to disregard the statement from the witness. Defense counsel then moved for a mistrial, which the court denied. However, the court repeated its instruction that the jury should disregard the officer’s last statement.
Appellant testified at trial. While he admitted occasionally spending the night at the complainant’s house, he denied having done so at any point during the three year period of time from 2004 to 2007. He also denied ever inappropriately touching the complainant.
Motion for Mistrial
In his first issue, appellant contends that the trial court abused its discretion when it denied his motion for a mistrial after the State’s expert witness, Officer Bailey, testified that the child-complainant was credible.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse-of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004); Davis v. State, 177 S.W.3d 355, 363 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Under this standard, an appellate court must uphold the trial court’s ruling as long as the ruling is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a narrow class of highly prejudicial and incurable errors.” Id.; see also Hawkins, 135 S.W.3d at 77. Thus, a trial court properly exercises its discretion to declare a mistrial when, due to the error, an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to “an obvious procedural error.” Wood, 18 S.W.3d at 648.
Where, as here, the trial court sustains an objection and instructs the jury to disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court abused its discretion in denying a mistrial. Hawkins, 135 S.W.3d at 77. In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Id. at 75. Only in extreme circumstances, where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors’ minds, will a mistrial be required. Kelley v. State, 677 S.W.2d 34, 36 (Tex. Crim. App. 1984).
B. Applicable Law
A witness’s testimony is admissible as expert testimony only if it “will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” Tex. R. Evid. 702. However, a witness’s direct opinion on the truthfulness of a child does not assist the jury in determining whether the child’s allegations are in fact true; rather, it impermissibly “decides [the] issue for the jury.” Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (emphasis in original); see also Lopez v. State, 315 S.W.3d 90, 100 (Tex. App.—Houston [1st Dist.] 2010, pet. granted). Thus, an expert witness’s bare opinion testimony that he believes, or believed, a child complainant’s testimony to be true is excludable. See Tex. R. Evid. 702; Yount, 872 S.W.2d at 708; Lopez, 315 S.W.3d at 100. However, “[t]estimony by an expert witness . . . that provides useful background information to aid the jury in evaluating the testimony of another witness is admissible.” Bryant v. State, No. 01-09-00200-CR, 2010 WL 3212126, at *7 (Tex. App.—Houston [1st Dist.] Aug. 12, 2010, no pet.) (“Opinion testimony that is otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.”) (citing inter alia Tex. R. Evid. 704).
B. Analysis
On direct examination, the State asked its expert witness, Officer Bailey, what the complaint’s demeanor was during their initial interview. Officer Bailey said, “I found her to be a credible child[.]” Because Officer Bailey’s answer constitutes a direct opinion on the truthfulness of the child-complainant’s allegations, the trial court properly excluded and instructed the jury to disregard the testimony. See Tex. R. Evid. 702; Yount, 872 S.W.2d at 708; Lopez, 315 S.W.3d at 100. Appellant, however, contends that the trial court abused its discretion by not granting his motion for a new trial. We now turn to the three factors set out in Hawkins to evaluate whether the trial court abused its discretion in denying the motion for mistrial. See Hawkins, 135 S.W.3d at 77.
1. Severity of the Misconduct
In considering Officer Bailey’s testimony and the questions asked by the prosecution, we find it instructive to compare the facts of this case to the facts in Fuller v. State, 224 S.W.3d 823 (Tex. App.—Texarkana 2007, no pet.). See id. at 835 (improper for witness to testify that she saw nothing to indicate that child witness was being untruthful). Fuller involved the sexual assault of a child. Id. The State’s case-in-chief consisted of the testimony of the victim and four witnesses, each of whom testified in some manner that the victim was a truthful and credible witness. Id. at 837. Further, these witnesses’ belief in the victim’s truthfulness and credibility was emphasized during closing argument. Id. The court of appeals reversed the conviction because the trial counsel’s failure to object to the testimony about the victim’s credibility caused the defendant harm. Id.
This case is distinguishable. Here, only Officer Bailey gave testimony that could be considered as improperly bolstering the believability of the complainant. Trial counsel immediately objected, and neither the witness nor the prosecutor again referred to the comment. Further, the prosecution’s question concerning the complainant’s demeanor does not immediately suggest that she was seeking an answer vouching for the complainant’s credibility. After the ruling on the objection, the prosecutor quickly amended her question to specify that she was asking about the complainant’s physical demeanor. While it was inappropriate for Officer Bailey’s statement to refer to the complainant’s credibility, this answer fails to constitute serious misconduct. See In re D.J.T., No. 12-08-00378-CV, 2009 WL 2517111, at *3 (Tex. App.—Tyler, 2009, no pet.) (mem. op.) (officer’s statement that he found child witness to be believable did not constitute serious misconduct).
2. Curative Measures
Following Officer Bailey’s statement, the court immediately instructed the jury to disregard the answer concerning the victim’s credibility. Furthermore, when trial counsel requested the mistrial, the trial court reemphasized to the jury to disregard the pertinent statements. We presume that the jurors follow the trial court’s instructions. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000); Carter v. State, 614 S.W.2d 821, 824–25 (Tex. Crim. App. 1981) (instruction to disregard normally cures error, except in extreme cases where it appears that evidence is clearly calculated to inflame minds of jurors and is of such character as to suggest the impossibility of withdrawing impression produced on jurors’ minds); see also Marles v. State, 919 S.W.2d 669, 672 (Tex. App.—San Antonio 1996, pet. ref’d) (any error from detective’s statements that two boys “appeared truthful” and that she found them “credible” was cured by trial court’s instruction to disregard); McDonald v. State, 148 S.W.3d 598, 603 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 179 S.W.3d 571 (Tex. Crim. App. 2005) (prosecutor’s statement that child was “very believable” sufficiently cured by instruction to disregard). Moreover, the trial court’s attention to this issue supports the presumption that the jury followed their instructions to disregard the inappropriate questions and answers.
3. Certainty of Conviction Absent Misconduct
In sexual abuse cases, the testimony of the child victim alone is sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. Art. 38.07 (Vernon 2005); Tran v. State, 221 S.W.3d 79, 88 (Tex. App.— Houston [14th Dist.] 2005, pet. ref’d); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d). Here, complainant’s testimony recited all the required elements of indecency with a child. The jury was able to hear the testimony from both the complainant and appellant in making its own independent judgment as to the veracity and credibility of the witnesses. Officer Bailey’s isolated comment was not of such a “damning character” that it would leave an impression on the minds of the jury that was likely to override their ability and cause the jury to convict when it otherwise would not. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). Evidence that the investigating officer believed the child would not greatly impact the jury, which would have likely surmised that from the fact that the officer pursued the criminal charges.
After balancing all of the factors, we hold that the trial court did not abuse its discretion in overruling appellant’s motion for mistrial. While we agree that Officer Bailey improperly opined that she found the complainant to be “a credible child,” a mistrial is required only in extreme circumstances where the prejudice is incurable. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In the context of this case, we cannot conclude that Officer Bailey’s improper statement, standing alone, caused the kind of incurable prejudice that could not be adequately addressed by the trial court’s repeated instructions to the jury to disregard. See D.J.T, 2009 WL 2517111 at *3; Marles, 919 S.W.2d at 672; see also Carter, 614 S.W.2d at 824–25.
We overrule appellant’s first issue.
Sufficiency of the Evidence
In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for indecency with a child. Specifically, appellant argues that the evidence is insufficient because it contains multiple contradictions from the testimonies of several of the witnesses.
A. Law Relating to Indecency with a Child
A person commits indecency with a child if he engages in sexual contact with a child who is younger than seventeen years of age. Tex. Penal Code § 21.11(a)(1) (Vernon Supp. 2009). Sexual contact is “any touching . . . of the anus, breast, or any part of the genitals of a child” if done with the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code § 21.11(c)(1). The intent to arouse or gratify may be inferred from the defendant’s conduct. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). As noted above, a child’s testimony alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. Art. 38.07; Tran, 221 S.W.3d at 88; Perez, 113 S.W.3d at 838.
B. Standard of Review
This Court now reviews both legal and factual sufficiency challenges using the same standard of review. Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *2–4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, pet. filed) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, evidence is insufficient to support a conviction if considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged. Williams, 235 S.W.3d at 750.
If an
appellate court finds the evidence insufficient under this standard, it must
reverse the judgment and enter an order of acquittal. See Tibbs v.
Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218
(1982). An
appellate court determines whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed in
the light most favorable to the verdict.
See Clayton
v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007) (citing Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In viewing the record, direct and
circumstantial evidence are treated equally; circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id.
(citing Hooper, 214 S.W.3d at
13). An appellate court presumes that the factfinder
resolved any conflicting inferences in favor of the verdict and defers to that
resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Clayton, 235 S.W.3d at 778. An
appellate court also defers to the factfinder’s evaluation of the credibility
of the evidence and weight to give the evidence. See Williams, 235 S.W.3d at 750.
C. Analysis
Appellant contends that his conviction should be reversed because the complainant’s testimony was so contradictory to that of the State’s other witnesses that the evidence presented was insufficient to find guilt beyond a reasonable doubt. Appellant points to conflicting testimony regarding what happened in the bedroom from the State’s two witnesses who testified about it. The complainant testified that appellant entered her bedroom between two and three in the morning, while her sister was in the bathroom. The complainant further testified that after appellant slipped into the bed, her sister returned from the bathroom and had an argument with appellant, after which he left. However, the complainant’s sister testified that she did not recall ever finding appellant in bed with the complainant or having an argument with appellant. The only time she remembered appellant in their room at night was one time around midnight when she awoke to see him standing in the door, after which she fell back asleep.
Additionally, appellant contends that the positioning of the bed against the wall would make it difficult, if not impossible, for the complainant’s sister to not notice appellant if he did in fact get into the bed with the complainant. The complainant and her sister slept in the same bed, with the complainant sleeping on the side closer to the wall. The complainant’s sister never felt anyone get in or near the bed. Appellant suggests the complainant’s sister would have felt something had he stepped over her and lain between the girls. Appellant contends that if the complainant’s sister got up and returned from the bathroom, as the complainant testified, then the complainant’s sister would have remembered the event, but she did not. Additionally, their stepsister, who slept in the upper bunk, never recalled the appellant even being in the room.
Furthermore, appellant points to conflicting testimony regarding how and when the complainant told her family about the incident. The complainant claims that she told her sister on the front porch and her mother while they were driving. The complainant’s sister said that the complainant first told her when they were in their room and that the complaint told their mother a couple of hours later in the apartment. The complainant’s mother claimed that the complainant told her on the way to the girls’ father’s house.
Lastly, appellant points to the jury’s “light compromise sentence” of four and a half years as evidence that the jury had considerable doubt about the appellant’s guilt.
It was within the province of the jury to make weight and credibility determinations, and we must give deference to the jury’s resolution of those issues. Marshall v. State, 210 S.W.3d 618, 620 (Tex. Crim. App. 2005). Here, despite the conflicts with the testimony of other witnesses, the complainant’s testimony recited every element required to prove indecency with a child. The complainant testified that before she was seventeen years old, appellant entered her room, got into bed with her, and touched her on the hips and underneath her shorts on her genitalia. This evidence establishes the offense of indecency with a child. See Billy v. State, 77 S.W.3d 427 (Tex. App.—Dallas 2002, pet. ref’d) (holding that child-complainant’s testimony that she woke to find defendant’s hand in her panties was legally sufficient to sustain conviction).
We may not reevaluate the jury’s decision concerning the credibility of the witnesses and thereby substitute our judgment for theirs. See Williams, 235 S.W.3d at 750. Reviewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Thus, we hold that the evidence is sufficient to sustain appellant’s conviction.
We overrule appellant’s second and third issues.
Conclusion
We affirm the conviction.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).