PD-0888-15
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
LEONARD CHARLES HICKS
Appellont
vs.
THE STATE OF TEXAS
Appellee
Originol conviction in the
262ND Judiciol Districi Courl
Hqrris County, Texqs
Couse No. 1373854
Appeoled From fhe Court of Appeols
No. 1 4-14-00263-CR
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED
MICHAEL P. FOSHER,
Attorney oi Low
The Lyric Center
440 Louisiono Ste. 1200
Housfon, Texqs 77002-1 636
(713) 221-18',t0
T.B.N.:07280300
ATTORNEY FOR APPELLANT
July 17, 2015
TABLE OF CONTENTS
INDEX OF AUTHORITIES
PETITION FOR DISCRETIONARY REVIEW
STATEMENT OF THE NATURE OF THE CASE. .
STATEMENT OF PROCEDURAL HISTORY
STATEMENT REGARDI NG ORAL ARGUMENTS
APPETLANT'S GROUNDS FOR REVIEW 2
APPELLANT'S FIRST GROUND FOR REVIEW
DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN
NOT GRANTING A MISTRIAL WHEN THE STATE'S WITNESS INTERJECTED THE PRIOR
SEXUAL CONDUCT OF THE COMPLAINANT? 3
APPELLANT'S SECOND GROUND FOR REVIEW
DID THE COURI OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN
ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECIION BY GIVING AN EXPERT
OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS? . .4
PRAYER FOR RELIEF. 6
CERTIFICATE OF SERVICE 7
INDEX OF AUTHORITIES
STATE CASES
Pinson v. Sfofe,
ZZB S.W. 2d91 {Crim. App. t9B9).
Droheim v. Sfofe,
916 S.W.2d 593 (Tex. App. - Son Antonio 1996l.
Miles v. Sfofe,
6l S.W.3d 682 (Tex. App. - Houston It 't Dis.] 200I ).
Velo v. Sfofe.
209 S.W.3d I2B (Tex. Crim. App. 2006). 4
Hollowoy y. Slofe,
6'13 S.W. 2d 497 (Tex. Crim.App. tgBt). {
Rodgers v. Sfote,
205 S.W.3d 525 {Tex. Crim.App. 2006).
Mozon v. Sfofe,
991 S.W.2d 84l (Tex. Crim.App. 1999).
STATE STATUTES
Rule 68 of the Texos Rules of Appellote procedure . .I
Tex. R. App.P. 68.1(o)(Vernon Pomph.20tS). I
Tex. R. App. P. Ann. 66.3(o), (c) & (f) (Vernon pomph. 2015). . 2
Tex. Rules of Criminol Evidence 412 (b). . 3
Tex. Rules of Eviden ce 702 . . 5
Tex. App. P.43.2, sec.3 Vernon's Pomph.20j4 . . 6
Tex. R. App. P. 43.2(a) Vernon Pomph. 2014 . 6
Tex. R. App.P.69.1 (Vernon Pomph.20tS). A
Texos Rule of Appellote Procedure 9.4 (i) (3). T
ii
PETITION FOR DISCRETIONARY REVIEW
IO IHE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Comes now, LEONARD CHARLES HICKS, the Appellont. who files his petiiioner
for discretionory review pursuont io Rule 68 of the Texos Rules of Appellote procedure
requesting the Court to review ond thereofter reverse the opinion issued by the
Fourteenth court of Appeols in couse Number 14-14-00263-cR , Leonord chorles
Hicks v. Siote, ond would show os follows:
STATEMENT OF THE NATURE OF THE CASE
This oppeol lies from Appellont's conviciion in The Stote of Texos vs LEONARD
CHARLES HICKS, Couse No. I 373854 for Aggrovoted Sexuol Assoult of o Child, in the
262nd Judiciol District Court. Horris County, Texos. On Februory 2g, 2014, the
Appelloni pled not guilty to ihe chorge. A jury triol wos held, the Appellont wos
found guilty of Aggrovoied Sexuol Asscult of o Child ond sentenced to 65 veors in
ihe Texos Deportment of Criminol Justice by the Jury.
Appellont gove written notice of oppeol on Morch 5, 20,I4, ond Counsel wos
oppointed on oppeol. A Motion for New Triol wos filed ond overruled by operotion
of low.
This Court hos jurisdiction pursuont to Tex. R.App. P. 68.1(o)(Vernon pomph.
20r 5).
STATE OF PROCEDURAL HISTORY
The Court of Appeols offirmed oppellont's conviction on June 30, 201S.
STATEMENT REGARDING ORAL ARGUMENTS
Appellont requests orol orgument.
APPELLANT'S GROUNDS FOR REVIEW
APPELLANT'S FIRST GROUND FOR REVIEW
DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN
NOT GRANTING A MISTRIAL WHEN THE STATE'S WITNESS INTERJECTED THE PRIOR
SEXUAL CONDUCT OF THE COMPLAINANT.
APPETTANT'S SECOND GROUND FOR REVIEW
DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN
ALLOWING JANET MARIE GREEN TO TESTIFY OVER OBJECIION BY GIVING AN EXPERT
OPINION WIIHOUT HAVING BEEN QUALIFIED AS AN EXPERT WIINESS.
Reosons For Gronting This Petition
This Court should gront this petition on ihe grounds thot: 1) the Justices of the
Court of Appecls hove disogreed on o moteriol question of low; 2) the Court of
Appeols hos decided on importont question of stote or federol low in o woy thot
conflicts with opplicoble decisions of the Court of Criminol Appeols or the Supreme
Court of ihe United Stotes ond 3) the Court of Appeols hos so for deported from the
cccepted ond usuol course of judiciol proceedings os io coll for on exercise of ihe
Court of Criminol Appeols' power of supervision. Tex. R. App. p. Ann. 66.3(o), (c) &
(f) (Vernon Pomph. 20.|5).
APPELLANT'S FTRST GROUND FOR REVTEW (RE-STATED)
DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED
IN NOT GRANTING A MISTRIAL WHEN THE STATE'S WITNESS INTERJECTED THE
PRIOR SEXUAL CONDUCT OF THE COMPLAINANT.
At one point during the triol Jeonnette Leedy wos osked if comploinont's
regression wos tied to onything specific ond she onswered "the lost time I remember
wos when she sow her little brother, she wos very hoppy io see the little boy, but ofter
she went home ond she lived with onother sibling immediotely they become so
sexuolly between the two of them thoi it wos olmost impossible to dismount them
one from the other." (R.R. lV-56).
Appellont's objection to heorsoy wos ultimoiely sustoined ond the jury wos
instructed to disregord the stotement ond o motion for mistriol wos denied. The
Judge then instructed the prosecutor to inquire os to opinions only ond not os io
stories or credible occounts of whot Ms. Reedy hcd heord (R.R. lV-52). Appellont's
request to toke the witness on voir dire wos noi gronted.
Even though the bosis of the oppellont's objection os to heorsoy wos susioined
the unsolicited prejudice of ihis stotement could not be ignored by the jury. lt could
only inflome them ogoinst oppellont ond on instruction to disregord would not hove
cured the horm. In coses where the defense ottempts to introduce evidence of the
victim's prior sexuol conduct, the defense must go through o number of steps before
such evidence would be presented to o jury Tex. Rules of Criminol Evidenc e a12 @).
In this instonce cose the testimony of the prior sexuol conduct of the comploinont
wos introduced by the Stote for the only conceivoble purpose of infloming the jury
osking them to deduce ihot her sexuol conduct with other siblings wos due to her
sexuol conduci with oppellont. This unfoir stotement wos not relevont to ony
contested issue in the cose otherthon to produce unfoir prejudice ogoinst oppellont
ond it could only be construed to inflcme the minds of the jury ond oppelloni's
request for o mistriol should hove been gronted. Pinson v. Sfofe ZZB S.W. 2dg j (Crim.
App. 1989) . Droheim v. Sfofe 9,|5 S.W.2d 593 (Tex. App. - Son Antonio 1996). Miles v.
Sfofe 6l S.W.3d 682 (Tex. App.- Houston Il'i Dis.] 2001).
Nevertheless, the Court of Appeols offirmed Appellont's conviction on this
ground. Opinion of Poge 10.
APPELLANT'S SECOND GROUND FOR REVTEW (RE_STATED)
DID THE COURT OF APPEALS ERR IN NOT FINDING THAT THE TRIAL COURT ERRED IN
ALLOWING JANET MARIE GREEN IO TESTIFY OVER OBJECTION BY GIVING AN EXPERT
OPINION WITHOUT HAVING BEEN QUALIFIED AS AN EXPERT WITNESS.
Ai one point Jonet Green testified wos os follows:
Question: Do you think Comploinont is o generolly o disturbed litile
girl or there is jusi something inherently wrong with her?
Answer: No, I don't.
Mr. McCoy: Judge, I cm going to object to thot. She's not been
quolified to moke o medicol diognosis.
The Court: OK. You con moke o legol objection if you'd like.
Mr. McCoy: Judge, I cm going to object to thot. This witness hcs nor
been quolified os on expert.
The Court: l'll ollow her to onswer thot quesiion in the form of her
opinion.
Quesiion (by
Ms. Epley): In your opinion is there something just inherenfly wrong
with Comploincnt?
Answer: No. (R.R. lll-49,50)
As io Ms. Green's testimony thot there wos nothing inherenfly wrong with
Comploinont, oppellont's objection notified the Couri thot this witness wos not
quolified to give on experi opinion on on ultimote issue in the cose. The foct ihot c
witness might possess knowledge or skill not possessed by other people generolly
does not in itself meon such expertise would ossist the trier of foct regording on issue
before the Court. Vela v. Stofe, 209 S.W.3d l2B (Tex. Crim. App.2006). At ihis
juncture of the triol ihe Court wos required to determine the quolificotions of Ms.
Green os on expert witness. Tex. Rules of Evidence 702. Accordingly it must be
shown thot the witness possesses speciol knowledge on the specific motter obout
which his or her experience is being sought. AIso the expert musi demonstrcte thot
he or she possesses knowledge thot ossists ihe trier of foct in understonding the
evidence or deiermining o foct in issue. Hollowoy v. Sfofe. 613 S.W. 2d 497 {Tex. Crim.
App. l?Bl).
Rodgers v. Sfofe, 205 S.W. 3d 525 {Tex. Crim. App. 2006) stotes thot there cre
three criierio in determining whether o triol court obused its discretion in evoluoting
the witnesses' quolificotions os on expert.
l. ls the field of expertise complex?
2. How conclusive is the expert's opinion?
3. How centrol is the oreo of experiise to the resolution of the lowsuit?
In this instance cose, none of these criterio were investigoied. The court in
ollowing this wiiness io moke o conclusive finding cs to on ultimote issue in the cose,
creoted unfoir prejudice to oppellont since the jury would hove given much weight
to the to witness' stotement ihot there wos nothing wrong with the comploinoni. The
triol court obused its discretion in not looking into the quolificotions of Ms. Green
before ollowing her to give on expert opinion. The Court of Appeols erred in not
finding thot ihe probotive volue of ihis testimony did not outweigh ihe domoges of
unfoir prejudice. Her testimony should hove been siricken from the record. Miles.
supro, Mozon v. Sfofe,99t S.W.2d 84t (Tex. Crim.App. jggg).
Nevertheless, ihe Court of Appeols offirmed Appelloni's conviction on ihis
ground. Opinion of Poge 12.
This court should reverse oppellcnt's conviction ond order o new triol Tex. App.
P.43.2,sec.3 Vernon's Pomph .20i4;Tex. R. App. p.43.2(o)vernon pomph. 2014.
This Court should gront oppellont's petiiion for discretionory review on these
grounds ond ordero full brief on the merits. Tex. R. App.P.69.1 (Vernon pomph.
20 r 5).
PRAY FOR RETIEF
WHEREFORE, PREMISES CONSIDERED, Appellont proys this Honorcble Court to
consider the grounds for review roised herein, to gront this petition for discretionory
review, ond to order o full ond complete heoring on the merits ond with briefs.
Respectfully submitted,
MICHAEL P. FOSHER
6
AITORNEY AT LAW
The Lyric Center
440 Louisiono. Suiie l2O0
Housfon, Texos 77002
7t3-221-rBr0
TBN 07280300
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
Ihereby certify thot pursuont io Texcs Rule of Appellote Procedure 9.a (i)
,|,90.|
(3), the foregoing Appeol contoins words.
MICHAEL P. FOSHER
CERTIFICATE OF SERVICE
The undersigned ottorney requested ihot o copy of this document be served
to Bridget Hollowoy, Assisiont Districi Attorney for Horris County, Texos vio TexFile ol
heremoiloddress, hollowcv bridget@doo.hctx.net on C)^*/."^
/-r-'
/ 4 . ?4 / S- :
MICHAEL P. FOSHER
Affirmed and Memorandum Opinion filed June 30, 2015.
In The
lfrsttri"t€rrih (4surt sJ Apppsln
NO. 14-14-08263-CR
LEONARD CIIARLES HICKS, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the262ndDistrict Court
Harris Counfy, Texas
Trial Court Cause No. 1373854
MEMORANDUM OPINION
Appellant, Leonard Charles Hicks, appeals his conviction for aggravated
sexual assault of a child. In three issues, he contends (1) the evidence is
insufficient to
support the conviction, {2) the trial court erred by denying
appellant's motion for a mistrial after a witness interjected improper testimony,
and (3) the trial court erred by allowing alay witress to provide an expert opinion.
We affirm.
I. BacrcnouNo
The female complainant, who was five-years-old at the time of trial, is
appellant's daughter. In January 2A12, when complainant was three-years-oid, she
began living with two adults, Janet Green and Pamela Richardson. These women
did not krrow complainant or her family but learned of her situation from a mutual
acquaintance. They agreed to temporarily care for compiainant because she and
her siblings were being removed from their parents' home and all the siblings had
been placed elsewhere. Complainant's placement in the home was subsequently
extended through actions of relevant agencies. In the fall of 2012, her younger
sister was also placed there. At the time of trial {over two years after complainant
first arrived), both children were sti11 living in the home.
According to the womsn's collective testimony, when complainant arrived,
she was very intelligent and talkative but displayed inappropriate behavior and
made statements that caused them concern. For instance, complainant would put
otr "alittle tutu skirt" and high-heel shoes and dance like "somebody in a strip
club." She 'playled] with herself' a lot in a manner that was more than just a
curious three-year-old touching her genitals. She "masfurbatfed]" using toys that
were hard objects and placed stuffed toys befween her legs. Once, while bathing,
she aggressively moved a fubular-shaped toy back and forth between her legs,
toward her genitals. When asked how she leamed that behavior, she replied, "my
daddy." Additionally, she was a&aid of men, the police, going to jail, and being
shot with a gun. She "always" talked about the "terrible things" that happened at
home and said she would rather kill herself than be killed by her parents.
Richardson, who was designated as the outcry wifiress, more specifically
testified that complainant said (1) her father would "stick" his finger in her "to-to,"
the term she used to described her vaginai area, which caused. bleeding because his
fingernails were long, (2) her father would snatch her off the toilet while he was
naked, put her on his lap, and "go ,rp and down" w'ith her, and (3) when her parents
found complainant while playing hide-and-seek, they would "play in my to-to" and
make her brother (who was two years older) "dig" in her "to-to."
Shortly after complainant's arrival in the home, Green contacted Children's
Protective Services {"CPS"), which referred the child to the Children's Assessment
Center ("the Center'). A forensic interviewer at the Center interviewed
complainant in March 2012, but she did not reveal any abuse, and no charges
resulted, at that time.
Meanwhile, Green also took complainant to a pediatrician. That doctor did
not testify at tnal, but her records were admitted. According to those records,
Green reported complainant was afraid of men, she was caught enacting a sexual
act with a doll, she disclosed that her mother made complainant's brother "play
with her 'tutie' (her word for vagina)," and the child repeated the same information
to the doctor. The pediatrician recommended &at complainant continue with the
CPS assessment, which was ongoing at that time.
After the CPS investigation was closed, complainant's behavior continued at
home, and the women placed her in therapy. The therapist testifie d that, at the
outset of their sessions, complainant would cower near men and was depressed and
anxious. The therapist did not relay any express statements made by complainant
but testified that complainant eveafually spoke about "the things that occuffed"
with her parents and consistently gave the same version. A psychiatrist treated
complainant along with the therapist. Compiainant was diagnosed with various
unrelated conditions, such as Attention Deficit Hyperactivity Disorder, but also
Post Traumatic Stress Disorder, w{rich the therapist explained was based on
complainant's life with her pareats.
In September 2A12, complainant's teacher contacted Green because of an
incident at school. When another child wanted to undress some dolls, complainant
"threw a ftt' and insisted, "don't do that because she's going to get huft like I did
by *y daddy." The teacher fried to calm complainant, but she repeated the doll
would get hurt "like my dad hurt me" if her clothes were removed. This report
prompted Green to again contact CPS, and the child was refered to the Center.
Complainant then met with the same forensic interviewer, who testified &at
this time the child made "disclosures." The interviewe was precluded at trial
from revealing those statements but testified the child placed her finger in the
vagina of an anatomicaliy correct doll and twisted the finger. The interviewer also
explained that often a child will not open up during a first interview but does later
after feeiing more comfortable due to family support or having attended therapy.
Complainant was also examined by a physician at the Center. The
physician's testimony, and portions of her medical records, reflected the following
exchange: Complainant told the physician, "my daddy touched my ear and in my
back, my behind." The physician asked, "what did he do to your behind?"
Complainant respoaded, 'he rubbed my front. He rubbed with my front. When he
was trying to play with my front with his ftnger,I keep watching cartoons and he
kept -- and I kept hitting him away."
Additionally, those medical records reflected the following history, as
provided by the referring adults: (1) complainant exhibited "sexualized behaviors";
(2) she had disclosed that appellant'put his fingers in iher] vagina"; and (3) "there
had been allegations against dad since fthe caregiver] first received child." The
records include a cornment fi'om the physician that complainant "gives clear
lhistory ofl fondling of genitals by father."
This second assessment resulted in a CPS disposition of "reason to believe."
The police arrested appellant for aggravated ssxual assault of a child.
Complainant testified at trial that appellant fwice "digged in my to-to."
Further, her brother testified that shortly before the family separated, he saw
appellant touch complainant's "middle part," the term the brother used to describe
complainant's genitals, and appellant made the brother hit complainant in her
"private area."
A jury convicted appellant of the offense. After finding fwo enhancement
paragraphs were "trtJe," &e j"ry assessed punishment at sixty-five years'
confinement.
II. SUTTTCIENCY oF THE EvrnpNcn
In his first issue, appellant contends the evidence is insufficient to support
his conviction. When reviewing sufficiency of the evidence, we view all evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 34A
S.W.3d 743,746 (Tex. Crim. App. 2011). This standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.
Circumstantial evidence is as probative as direct evidence in establishing guilt.
Hooper v. State,214 S.W.3d 9, 13 (Tex. Crim. App. 2AA7). Each fact need not
point directly and independently to guilt, as long as the cumulative force of all
incriminating circumstances is sufficient to support the conviction. Id.
A person commits aggravated sexual assault of a child if he intentionally or
knowiagly causes the penetration of the sexual organ of a child younger than age
fourteen by any means. Tex. Penal Code Ann. $ 22.A21{a)(1XBXt, (2XB) (West,
Westlaw through 2015 R.S.). In this case, the jury was charged that appellant
committed the offense if he intentionally or knowingly penetrated complainant's
sexual organ with appellant's finger.
The State presented direct evidence that appellant penetrated complainant's
vagina with his finger: (1) complainant's testimony that appellant twice "digged in
my to-to," which referred to her vaginal area; and {2) complainant's outcry to
Richardson that appellant would "stick" his finger in her "to-to." Either testimony
is alone sufficient to support the conviction. S'ee Tex. Code Crim. Proc. Ann. art.
38.07(a) (West, Westlaw through 2015 R.S.) (providing conviction for sexual
assault of a child is "supportable on the uncorroborated testimony of the victim . . .
. "); Rodriguez v. state, 819 s.w.2d 871,873 (Tex. crim. App. 1991) (recognizing
outcry testimony alone can be legally sufficient evidence to supporl a conviction
for sexual assault of a child); see olso Bargas v. State,252 s.w.3d,876,888-99
{Tex. App.-Houston l14th Dist.l 2008, ao pet.) (holding child's testimony
regarding abuse was alone sufficient to support defendant's conviction for
aggravated sexual assault despite child's use of "unsophisticated terminolo W");
Jensen v. State,66 S.w.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2a02, pet.
refd) iholding child's outcry statement was alone sufficient to support defendant's
conviction for aggravated sexual assault).
Nonetheless, the following evidence, although not direct regarding the
requisite penetration, supported the jr'rry'r finding, when combined wi& the direct
evidence: (1) complainant's sexually suggestive behavior; (2) complainant's
fearful demeanor, including a fear of men; (3) complainant's specific remarks to
caregivers or professionals generally indicating abuse by appellant: she learned to
move tubular-shaped toys back and forth toward her genitals from "my daddy"; he
made her "go up and down" on his lap while he was naked; an undressed doll
might get "hurt" like appellant "hurt" compiainant; her parents "play" in her "to-
to" during hide-and-seek; and appellant rubbed and tried to play with
complainant's "front" with his finger; (4) the fact that complainant generally spoke
to her therapist about the "&ings that occuffed" and was diagnosed with Post
Traumatic Stress Disorder from having lived with her parents; (5) the fact that
complainant generally made "disclosures" to the forensic interviewer fat their
second meeting); (6) complainant's actions during that interview of placing her
finger in the vagina of the doll and twisting the finger; {7) the brother observing
appellant "toush" complainant's genitals; {8) appellant forcing the brother to 'hit"
complainant's genitals or place his finger in her "to-to"; and (9) the CpS
disposition of "reason to believe."
Appellant proffers multiple reasons that the evidence is purpoftedly
insufficient to support his conviction.
First, appellant cites several items of evidence to attack the credibility of
wifiresses and whether the child's statements, behaviol, and testimony indicated
any sexual assault occurred:
Complainant was diagnosed with several psychological disorders unrelated
to any sexual abuse, and her therapist acknowledged she had difficulty
adapting to her new home.
Complainant gave coaflicting trial testimony on whether any abuse
occurred: She originally testified no one had touched her "to-to." The
prosecutor then requested a bteak and spoke with complainant. After the
break, complainant testified the prosecutor did not tell her what to say but
only that she should tell the truth and they would talk about her father. She
then testified appellant"digged in my to-to."
Complainant's teacher acknowledged the child was bossy and thus it was not
unusual for her to insist another child refrain &om removing a doll's clothes.
r The CPS iavestigator who ultimately reached a disposition of "reason to
believe" did not personaily interview complainant or the investigating
officer but gathered her information from observing the forensic interview.
o Green originally testified complainant and her brother had seen each other
only once since complainant began living in the Green/Richardson home,
but, after the brother recounted two visits, Greer acknowledeed she had
forgotten another visit. 1
A11 of these points are merely matters on which we defer to the jury in its
role to judge the credibiiity of witnesses, weigh certain factors, and choose whether
to believe some or all of a witness's testimony. See Gear, 340 S.w.3d at 746;
skarp v. stare,707 s.w.zd 611, 614 (Tex. crim. App. 1996) {recognizing jury
may choose to believe some, while rejecting other portions, of a witness's
testimony). The jury was free to resolve those issues in favor of believing the
State's witnesses and deternining that complainant's testimony, statements, and
behavior supported a finding that appellant committed the offense. See Gear,34A
S.W.3d at 7 46; Sltarp, 707 S.W.2 d at 614.
]rtrext, appellant relies on the {act that the physician who examined
complainant at the Center did not find any physical signs of abuse. However, that
fact does not render the evidence insufficient; the physician also explained that it is
common for a victim of sexual abuse to have normal physical {indings because
injuries heal quickly and the vagina is very elastic.
Finally, appellant cites the brother's testimony that his mother's boyfriend,
referred to as "Daddy Phillip," was the one who touched complainant's genitals.
Howeveq the brother later clarified that '?addy Phillip" arrd appellant are the
same pefson.
t The State proffered testimony regarding the limited number of visits to prove the
children lacked an opportunity to concoct a story, and when Green remembered both visits, she
was clear they occurred after complainant's outcry.
In summary, the evidence is suffrcient to support appellant's conviction for
aggravated sexual assault of a child. We ovenule his first issue.
III. DSNIAL oF MoTIoN FoR Mrsrnrel
In his second issue, appeilant complains that the trial court denied
appellant's request for a mistrial a*er a witress interjected improper testimony.
On direct examination, complainant's therapist testified that she becomes
concerned when she detects complainant is regressing. The State asked if the
regression is tied to anything specific, and the therapist responded:
The last time I remember was whea she saw her little brother, she was
very happy to see the litt1e boy, but after she went home and she lives
with another sibling and immediately they became so sexually lsic]
between the two of them that it was almost impossible to dismount
them one from the other.
Appellant's counsel asked to take the witness on voir dire, asser-ting the
testimony was likely hearsay because it involved activity ia the home on which the
therapist would lack personal knowledge. Without requiring voir dire, the trial
court's sustained the hearsay objection and instructed the jury to disregard the
response. The trial court then denied appellant's request for a mistrial.
We review a trial coutt's denial of a motion for mistrial for abuse of
discretion. Simpson v. State, 119 S.W.3d 262, 272 {Tex. Crim. App. 2003).
Mistrial is appropriate oniy for "highly prejudiciai" and "incurable" ercors. Id. "It
may be used to end trial proceedings when faced with error so prejudicial that
expenditure of further time and expense would be wasteful and futile." Id.
Ordinarily, a prompt insfnrction to disregard will cure en:or associated with
improper testimony. See id- "Generally, a mistrial is only required when the
improper evidence is clearly calculated to inflame the minds of the jury and is of
such a character as to suggest the impossibility of withdrawing the impression
produced on the minds of the juqr." Hinojosa v. State,4 S.w.3d 24a, 253 (Tex.
Crim. App. 1999). Whether the eroneous admission of evidence requires a
mistrial is determined by coasidering the facts and circumstances of the case. Id.
Appellant conteads the testimony at issue was introduced by the State solely
to inflame the jury and it unfairly prejudiced appellant. The record negates
appellant's contention regarding the State's pu{pose because the State represented
it did not expect the witness's response and seemed to acknowledge it had yet to
establish admissibility of any such testimony. Fufiher, the question regarding what
type of events caused complainant to regress did not indicate the State intended for
the witness to describe such a detailed incident that was not necessarily based on
her personal knowledge.
With respect to fhe unfair-prejudice contention, appellant asserts the
testimony suggested complainant and her sister behave in a sexual manner toward
each other because they learned this behavior from appellant's sexual conduct
toward complainant. We disagree that the testimony at issue was "so prejudicial
that expenditure of further time and expense would be wasteful and futile," see
Simpson, i 19 S.W.3d at 272, because the jury had already heard ample other
evidence regarding sexual behavior exhibited by complainant. Moreover, Green
had testified that when the sister arrived in the home, she displayed similar
behavior.
Accordingly, the trial court did not abuse its discretion by denying
appellant"s motion for a mistrial. We ovemrle his second issue.
IV. AIUTSSION OF' TESTIMOT\IY
In his third issue, appellant argues that the trial court erred by allowing a fact
witress to provide an expert opinion. Appellant cites the following exchange when
10
the State examined Green:
Q. Do you think that lcomplainarrtl is a generaliy disturbed
little girl or there's just something inherently \mong with her?
A. No. I don't.
IAPPELLANT'S COTINSEL]: Judge, I'm going to object to
that. she's not been qualified to make a medical diagnosis.
THE colrRT: okay. You can make a legal objection if you'd
1ike.
IAPPELLANT'S COLTNSEL]: Judge, I'm going to object to
that. This witness has not been qualified as an expert.
THE COURT: I'11 allow her to ansu/er that question in the form
of her opinion.
a. [Tf{E' STATE] In your opinion, is there something just
inherently wrong wi& fcomplainant]?
A. No.
Appellant contends the testimony constituted an expert medical opinion, which
Green was not qualified to provide.
A lay witness may testify io the form of an opinion if it is (a) rationally
based on the wifiress's perception, and ft) heipful to clearly understanding the
wifiress's testimony or to determining a fact in issue. Tex. R. Evid. 701. The
wifness must have personally observed or experienced the events about which she
testifies. See osboltrn v. State,92 S.w.3d 531, 535 (Tex. Crim. App. 2002).
Thus, the witness's testimony can include opinions, beliefs, or inferences as long
as they are drawn from her own experiences or observations. Id.; see also Clark v.
state, 305 s.w.3d 351,357 {Tex. App.-Houston [14th Dist.] 2010), aff'd, 365
s.w.3d 333 (Tex. crim. App. 2aD) (citing wlson v. stare,605 s.w.2 d,2g4,296-
87 (Tex. Crim. App. 1930)). We review the trial court's decision to admit
evidence for abuse of discretion. Martinez v. State,327 S.W.3d 727,736 {Tex.
11
Crim- App- 2010). The trial court does not abuse its discretion unless its
determination lies outside the zone ofreasonable disagreement. Id.
We conclude the trial court did not abuse its discretion by determining
Green did not provide an expert medical opinion and was permitted to give her
opinion as a lay wifiress. Green did not refer to any specific medical conditions
and instead described complainant's general disposition. The trial court acted
within its discretion by coacludiag that Green, having cared for complainant in
Green's home for more than two years, could adequately give alay opinion about
whether complainant was "generally disturbed" or had "something inherently
wrong" with her. Moreover, although appellant does not dispute whether subpart
(b) of Rule 701 was satisfied, the testimony was helpful to determining a fact at
issue-whether, as suggested by appellant, complainant contrived a story about
sexual abuse because she has psychological disorders. See Tex. R. Evid. 701ib).
Because the trial courl did not err by admitting the testimony, we ovemrle
appellant's third issue.
We affir:n the trial court's judgment.
lsl John Donovan
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish Tex. R. App. P. 47 .Z{b).
-
L./.
Hicks, Leonard Charles
Combined Opinion