ACCEPTED
14-14-00263-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/20/2015 7:45:03 PM
CHRISTOPHER PRINE
No. 14-14-00263-CR CLERK
In the
FILED IN
Court of Appeals 14th COURT OF APPEALS
For the HOUSTON, TEXAS
1/20/2015 7:45:03 PM
Fourteenth District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
No. 1373854
nd
In the 262 Criminal District Court
Of Harris County, Texas
LEONARD CHARLES HICKS
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
ERIN EPLEY
Assistant District Attorney
Harris County, Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713·755·5826
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests
oral argument only if appellant requests oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Complainant, victim, or aggrieved party:
Minor child
Counsel for the State:
Devon Anderson District Attorney of Harris County
Bridget Holloway Assistant District Attorney on appeal
Erin Epley Assistant District Attorney at trial
Appellant or criminal defendant:
Leonard Charles Hicks
Counsel for Appellant:
Kenneth McCoy Attorney at trial
Michael P. Fosher —Attorney on appeal
Trial Judge:
Honorable Denise Bradley Presiding Judge
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ................................................................................ i
TABLE OF CONTENTS........................................................................................................... ii
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................ 1
SUMMARY OF THE ARGUMENT ..................................................................................... 3
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED ................................................ 4
Standard of Review ................................................................................................................ 4
Analysis ..................................................................................................................................... 5
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED........................................... 8
Analysis ..................................................................................................................................... 9
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED.............................................. 11
Analysis ................................................................................................................................... 12
CONCLUSION ........................................................................................................................ 14
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ........................ 15
ii
INDEX OF AUTHORITIES
CASES
Adames v. State,
353 S.W.3d 854 (Tex. Crim. App. 2011)........................................................................... 4
Bartlett v. State,
270 S.W.3d 147 (Tex. Crim. App. 2008) .......................................................................... 4
Campos v. State,
589 S.W.2d 424 (Tex. Crim. App. 1979) ....................................................................... 10
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007).......................................................................... 5
Curry v. State,
30 S.W.3d 394 (Tex. Crim. App. 2000) ........................................................................... 5
Duncan v. State, .
95 S.W.3d 669
(Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) ...................................................... 11
Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781 (1979) ..................................................................................... 4
Jones v. State,
428 S.W.3d 163
(Tex. App. —Houston [1st Dist.] 2014, no pet.) ........................................................... 6
Kemp v. State,
846 S.W.2d 289 (Tex. Crim. App. 1992) ....................................................................... 10
Ladd v. State,
3 S.W.3d 547 (Tex. Crim. App. 1999) ............................................................................ 10
Lancon v. State,
253 S.W.3d 699 (Tex. Crim. App. 2008) ..................................................................... 5, 8
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Leday v. State,
983 S.W.2d 713 (Tex. Crim. App. 1998) .......................................................................... 11
Lee v. State,
176 S.W.3d 452
(Tex. App. —Houston [1st Dist.] 2004) ......................................................................... 6
Martines v. State,
371 S.W.3d 232
(Tex. App. —Houston [1st Dist.] 2011, no pet.); ........................................................... 6
Martinez v. State,
178 S.W.3d 806 (Tex. Crim. App. 2005) .......................................................................... 6
Osbourn v. State,
92 S.W.3d 531 (Tex. Crim. App. 2002) .......................................................................... 12
Sharp v. State,
707 S.W.2d 611 (Tex. Crim. App. 1986) ........................................................................... 5
Simpson v. State,
119 S.W.3d 262 (Tex. Crim. App. 2003) ........................................................................ 10
Tear v. State,
74 S.W.3d 555
(Tex. App. —Dallas 2002, pet. ref’d) ........................................................................... 6, 7
Williams v. State,
235 S.W.3d 742 (Tex. Crim. App. 2007) ..................................................................... 5, 7
Wood v. State,
18 S.W.3d 642 (Tex. Crim. App. 2000) ......................................................................... 10
iv
STATUTES
TEX. CODE CRIM. PROC. ANN.
art. 38.07(a) (Vernon Supp. 2014)..................................................................................... 6
TEX. PENAL CODE ANN.
§ 22.021(a)(l)(B)(i) (Vernon Supp. 2014) ................................................................... 5, 6
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................................. i
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TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant, Leonard Charles Hicks, was charged by indictment aggravated
sexual assault of a child. The charge was enhanced with two prior felony
convictions for delivery of a controlled substance and burglary of a habitation.
(CR at 23). Appellant entered a plea of “not guilty” to the offense. (RRIII at 11). A
jury found appellant guilty as charged and later assessed his punishment at
confinement for 65 years. (RRVI at 22, 46). A written notice of appeal was timely
filed. (CR at 133).
STATEMENT OF FACTS
Janet Green and her partner, Pamela Richardson, received a phone call in
January 2012 to see if they could take in appellant’s three-year-old daughter, the
complainant, who needed a home and someone to care for her. (RRIII at 13-14, 23,
54). The ladies took the complainant in, as well as her three-year-old sister seven
months later. (RRIII at 15). While the complainant was very smart and talkative,
the women noticed behavior that was inappropriate for her age. (RRIII at 15, 18).
For example, the complainant once dressed in a tutu skirt and high heels and
danced “like you would see somebody in a strip club doing.” (RRIII at 18, 55). The
complainant also frequently used hard objects between her legs to masturbate.
(RRIII at 19, 55). When asked where she learned to do that, the complainant said
“daddy.” (RRIII at 58). The complainant’s younger sister also exhibited similar
behavior. (RRIII at 19).
In addition to being afraid of men, the complainant was frightened of the
police, afraid of going to jail, and of being shot by a gun. (RRIII at 26). She talked
about killing herself and preferring it instead of being killed by her parents.
(RRIII at 27). The complainant stated she liked that Janet and Pam did not get
mad at her when she was in the bathroom and “snatch her off the toilet and put
[her] on [their] lap and go up and down with [her].” She said her dad, while
naked, would do that with her. (RRIII at 59). She said that one time her mother
put ointment on her “tu-tu” because it bled after her dad stuck his finger in it.
(RRIII at 60). She also mentioned that Hide-and-Go-Seek was a game her family
played at home where she would hide and “they” would play with her “tu-tu”
when they found her. (RRIII at 24, 61). She claimed that her older brother did not
like playing with her “tu-tu” when her mom and dad told him to. (RRIII at 61).
The complainant referred to her female genitalia as her “tu-tu.” (RRIII at 60; RRIV
at 78, 91, 122).
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SUMMARY OF THE ARGUMENT
State’s Reply to Appellant’s First Issue:
Because the complainant testified that appellant sexually assaulted her, and
because physical evidence is not required in a sexual assault case, the evidence is
sufficient to support appellant’s conviction.
State’s Reply to Appellant’s Second Issue:
Any deduction that the complainant’s sexual conduct was due to appellant
was not so prejudicial, in light of other evidence, as to require a mistrial. The trial
court, therefore, did not abuse its discretion by denying the motion for mistrial.
State’s Reply to Appellant’s Third Issue:
Because Janet was not offered as an expert witness at trial, but was a lay
witness capable of expressing an opinion on the complainant due to her personal
experience and knowledge, the trial court did not err by admitting her opinion.
3
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
In his first issue presented on appeal, appellant argues the evidence is
insufficient to support the jury’s verdict. Specifically, appellant complains that the
State failed to meet its burden of proof because of inconsistent evidence and no
physical evidence that the complainant was assaulted. Because the complainant
testified that appellant sexually assaulted her, and because physical evidence is
not required in a sexual assault case, the evidence is sufficient to support
appellant’s conviction.
STANDARD OF REVIEW
When reviewing the sufficiency of the evidence, the evidence is seen in the
light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Adames v. State, 353
S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only
standard to use when determining sufficiency of evidence). The jurors are the
exclusive judges of the facts and the weight to be given to the testimony. Bartlett v.
State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury, as the sole judge of
credibility, may accept one version of the facts and reject another, and it may reject
any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
4
App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App. —Houston [1st
Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve witness even when
witness’s testimony is uncontradicted). This Court may not re-evaluate the
weight and credibility of the evidence or substitute its own judgment for that of
the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Almost complete deference is afforded to the jury’s credibility determinations. See
Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Any inconsistencies in
the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (“When the record supports conflicting inferences, we presume that
the factfinder resolved the conflicts in favor of the prosecution and therefore defer
to that determination.”).
ANALYSIS
To establish that appellant committed the offense of aggravated sexual
assault of the complainant, as charged in the indictment, the State had to prove
that appellant intentionally or knowingly penetrated the complainant’s sexual
organ with his finger. See TEX. PENAL CODE ANN. § 22.021(a)(l)(B)(i) (Vernon
Supp. 2014). A conviction for aggravated sexual assault of a child is “supportable
on the uncorroborated testimony of the victim of the sexual offense.” TEX. CODE
5
CRIM. PROC. ANN. art. 38.07(a) (Vernon Supp. 2014); Martinez v. State, 178 S.W.3d
806, 814 (Tex. Crim. App. 2005) (noting that article 38.07 “deals with the
sufficiency of evidence required to sustain a conviction for” certain sexual
offenses) (emphasis in original). The State has no burden to produce any
corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex.
App. —Houston [1st Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458
(Tex. App. —Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence
is a factor for the jury to consider in weighing the evidence.”), aff’d, 206 S.W.3d 620
(Tex. Crim. App. 2006). Likewise, a child victim’s outcry statement alone can be
sufficient to support a sexual assault conviction. See Jones v. State, 428 S.W.3d 163,
169 (Tex. App. —Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d 555, 560
(Tex. App. —Dallas 2002, pet. ref’d).
Here, the complainant identified appellant as her father and testified he
“dug in [her] tu-tu” twice while she was at her cousin’s house. (RRIV at 121, 130,
134). The complainant identified her vagina as her “tu-tu.” (RRIV at 122). The
complainant testified to the essential elements of aggravated sexual assault of a
child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). Her testimony, standing
alone, is sufficient to sustain appellant’s conviction. See TEX. CODE CRIM. PROC.
ANN. art. 38.07(a) (Vernon Supp. 2014); Jones, 428 S.W.3d at 169; Martines, 371
S.W.3d at 240; Lee, 176 S.W.3d at 458.
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Moreover, the evidence further showed that the complainant made an
outcry to Janet that her dad liked to play with her “tu-tu.” (RRIII at 24). And, she
told Pamela that one time he made her “tu-tu” bleed after sticking his long finger
nails in her “tu-tu.” (RRIII at 60). She further told her pediatrician that her dad
rubbed her front with his finger. (RRIV at 32-33). The complainant’s outcry
statement is also sufficient, standing alone, to sustain a sexual assault conviction.
See Jones, 428 S.W.3d at 169; Tear, 74 S.W.3d at 560. Additionally, the
complainant’s brother, appellant’s son, testified he saw his dad touch the
complainant’s “middle part,” also known as “tu-tu.” (RRIII at 78-79).
In arguing that the State failed to present sufficient evidence, appellant
points to the lack of physical evidence and the “number of inconsistencies” (not
noted in his argument, just stated as fact). In sexual assault of a child cases, the
State has no burden to present any corroborating or physical evidence of the
abuse. Jones, 428 S.W.3d at 169; Martines, 371 S.W.3d at 240; Lee, 176 S.W.3d at 458.
The 5-year-old complainant, while not forthcoming at first, testified that appellant
committed acts constituting aggravated sexual assault, and her testimony alone is
sufficient to support the conviction. See, e.g., Jones, 428 S.W.3d at 169. Her brother
testified to witnessing the abuse. The jury heard the evidence, credited their
testimony, and found appellant guilty. See Williams, 235 S.W.3d at 750; see also
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Lancon, 253 S.W.3d at 705 (stating that the court affords almost complete
deference to jury’s credibility determinations).
Viewing the evidence in the light most favorable to the verdict, sufficient
evidence was presented to support appellant's conviction for aggravated sexual
assault of a child. Appellant’s first issue presented on appeal should be overruled.
REPLY TO APPELLANT’S SECOND ISSUE PRESENTED
In his second issue presented on appeal, appellant argues the trial court
abused its discretion in denying his request for a mistrial after the jury heard the
following from the complainant’s therapist regarding the complainant’s
“regression:”
[State]: Anything about your experience with [the
complainant] lead you to have concerns about her
psychological well-being?
[Therapist]: Sometimes, uh-huh.
[State]: How so?
[Therapist]: When I start seeing her kind of regressive, starting
to have problems or behaving in certain ways, I get
concerned.
[State]: And regressing in what way?
[Therapist]: She may go back to having problems with sleep,
ignoring totally what you asked her to do, those
kind of things.
8
[State]: And in the year of seeing her, does her regression,
did it seem to be tied to anything in specific?
[Therapist]: The last time I remember was when she saw her
little brother, she was very happy to see the little
boy, but after she went home and she lives with
another sibling and immediately they became so
sexually [sic] between the two of them that it was
almost impossible to dismount them one from the
other.
(RRIV at 56). Appellant objected to hearsay, and the State agreed and pointed out
that was not the answer it was expecting. The trial court sustained the objection,
instructed the jury to disregard, and denied appellant’s request for a mistrial.
(RRIV at 57). Any deduction that the complainant’s sexual conduct was due to
appellant was not so prejudicial, in light of other evidence, as to require a mistrial.
The trial court, therefore, did not abuse its discretion by denying the motion for
mistrial.
ANALYSIS
Appellant argues on appeal that the testimony of the complainant’s prior
sexual conduct was introduced for the sole purpose of inflaming the jury by
“asking them to deduce that [the complainant’s] sexual conduct with other
9
siblings was due to her sexual conduct with [him].”1 The record, however, shows
that the State had no purpose for the unsolicited hearsay and it was not so
prejudicial as to require a mistrial.
The trial court’s denial of a motion for mistrial is reviewed for an abuse of
discretion. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).
Mistrial is appropriate for a narrow class of “highly prejudicial and incurable
errors[,]” and may be granted when the court is “faced with error so prejudicial
that ‘expenditure of further time and expense would be wasteful and futile.’” Id.
(quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). Instructing
the jury to disregard will generally cure error associated with testimony referring
to an extraneous offense. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.
1992); Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979). When, as here,
a trial court instructs a jury to disregard certain testimony, it is presumed that the
jury followed the trial court’s instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999).
Here, the trial court sustained appellant’s objection and immediately
instructed the jury to disregard the testimony. In addition, the jury heard
1
Appellant’s Brief at 32.
10
testimony that the complainant frequently masturbated with hard objects and
that appellant made the complainant’s brother play in her vagina. See Leday v. State,
983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Duncan v. State, 95 S.W.3d 669, 672
(Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) (Improper admission of evidence
is not reversible error if the same or similar evidence is admitted without objection
at another point in the trial.). Any deduction that the complainant’s sexual
conduct was due to appellant was not so prejudicial, in light of other evidence, as
to require a mistrial. The trial court, therefore, did not abuse its discretion by
denying the motion for mistrial.
Appellant’s second issue presented on appeal should be overruled.
REPLY TO APPELLANT’S THIRD ISSUE PRESENTED
In his third issue presented on appeal, appellant complains the trial court
erred in allowing Janet, over objection, to give an “expert opinion” that there was
nothing inherently wrong with the complainant. Because Janet was not offered as
an expert witness at trial, but was a lay witness capable of expressing an opinion
on the complainant due to her personal experience and knowledge, the trial court
did not err by admitting her opinion.
11
ANALYSIS
Generally, “observations which do not require significant expertise to
interpret and which are not based on a scientific theory can be admitted as lay
opinions if the requirements of Rule 701 are met. This is true even when the
witness has experience and training.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex.
Crim. App. 2002). Moreover, a lay witness with sufficient personal experience
and knowledge may be qualified to express an opinion on a matter outside the
realm of common knowledge with respect to events not normally encountered by
most people in everyday life. Id. “It is only when the fact-finder may not fully
understand the evidence or be able to determine the fact in issue without the
assistance of someone with specialized knowledge that a witness must be
qualified as an expert.” Id.
On cross-examination, Janet was questioned about the complainant’s
therapist and that the complainant was put on medication to “calm her down.”
(RRIII at 44). Janet was then questioned about the complainant’s diagnosis,
which Janet testified was “ADD, ODD, and ADSD (later corrected to PTSD).”
(RRIII at 46). Based upon that testimony, the State asked Janet, on redirect, if she
had an opinion as to whether something was inherently wrong with the
complainant; Janet responded “no.” (RRIII at 49-50). Her testimony required no
expertise, but was her lay opinion after her personal experience with, and
12
knowledge of, the complainant. It was not outside of the zone of reasonable
disagreement for the trial court to conclude that Janet’s opinion might be helpful
to the jury. The trial court did not abuse its discretion by admitting Janet’s
testimony.
Appellant’s third issue presented on appeal should be overruled.
13
CONCLUSION
It is respectfully submitted that all things are regular and that the
conviction should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
14
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 3328 words in the document; and (b)
that the undersigned attorney requested that a copy of this document be served to
appellant’s attorneys via TexFile at the following email on January 20, 2015:
Michael P. Fosher
Attorney for Appellant
Email: (not listed in brief, will use one, if any, on file with TexFile)
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
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