Frohne v. State

OPINION

COHEN, Justice.

A jury found appellant guilty of indecency with a child. The trial judge assessed punishment at 10-years imprisonment, probated. In four points of error, appellant complains of (1) improper bolstering of the State’s witnesses, (2) insufficient evidence, (3) prosecu-torial misconduct, and (4) ineffective assistance of counsel. We affirm.

Background Facts

The complainant, L.D., is a minor child who lived with her mother and her mother’s husband, the appellant. L.D. stayed often with Ruby Hansen, her godmother. Hansen became suspicious that something was wrong when L.D. did not want to be alone with the appellant. In July 1993, Hansen asked L.D. whether the appellant molested her. L.D. responded affirmatively and described in graphic detail the sexual acts in which the appellant forced her to participate. Hansen reported the problem to Child Protective Services (C.P.S.), and C.P.S. initiated an investigation. During this investigation, L.D. was interviewed four times by C.P.S. workers, once by a pediatrician, and 30 to 40 times by a clinical social worker. The investigation led to the filing of charges against the appellant.

Bolstering

In point of error one, appellant contends the State impermissibly bolstered the testimony of L.D., George Schuler, Jr., and Emily Ginsberg, two of the State’s expert witnesses. Appellant waived this complaint by not objecting at trial. Tex.R.AppP. 52(a).

We overrule point of error one.

Sufficiency of the Evidence

In point of error two, appellant contends the evidence is insufficient to prove he touched L.D.’s genitals with the intent to arouse or gratify his own sexual desires. See TexJPenal Code § 21.01(2). We follow the usual standard of review. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991).

*572L.D. was 14 at the time of trial in 1994. She testified the appellant began sexual contact with her when she was about five years old and continued until she was 12, when she told Hansen. L.D. testified appellant touched her genitals with his hands, and that when he did so, it usually occurred in the bedroom. L.D. also testified the appellant made her touch his “private parts,” and he would not let her close her bedroom door when she dressed. Both Ginsberg and Hansen testified L.D. told them appellant tried to penetrate L.D., performed oral sex on L.D., and forced L.D. to perform oral sex on him. The evidence is sufficient.

We overrule point of error two.

Prosecutorial Misconduct

In point of error three, appellant contends he was denied a fair trial because of prosecu-torial misconduct, specifically, that the prosecutor asked him on cross-examination: (1) whether his parental rights had been terminated; and (2) whether he had served and been injured in the Vietnam War. Appellant did not object at trial, thus waiving any error.

We overrule point of error three.

Ineffective Assistance of Counsel

In point of error four, appellant raises six omissions by his attorney that he alleges were ineffective assistance of counsel during the guilt-innocence phase of trial.

We follow the usual standard of review and consider each of appellant’s complaints. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994).

No Awareness of Relevant Law

Appellant first contends counsel was ineffective because he was not familiar with two important cases, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). We will address the contention when analyzing appellant’s remaining allegations.

No Objection to Inadmissible Expert Testimony

Appellant asserts counsel was ineffective for not objecting to Ginsberg’s expert testimony based on Daubert and Tex.R.Ceim. Evm 705(c).1 Ginsberg, a clinical social worker, testified as the State’s expert that she had treated L.D. once a week beginning in October 1993. Appellant contends counsel was ineffective for not objecting to the following portions of Ginsberg’s testimony:

Q. Can you describe this child when she first came to you?
A. When I first saw [L.D.], she was very — what you would call emotionally flat. She did not have the after effect. She was not fearful; she did not cry. She did not seem extremely anxious as most children do. I would describe her as withdrawn. She could talk about some of the things that would happen to her, but not the kind of emotion that you would expect from a child who had been through something like that.
Q. What do you mean by that?
A. Well, she would describe to me, for example, the events that led up to child welfare intervening in her life, but she was not fearful about it. And she would not cry. She would just sit there and tell me about it with a very calm expression, really inappropriate expression for what she was describing to me.
Q. Have you seen that before in incest victims?
A. Yes.
Q. Is it common or uncommon?
A. It’s common.
Q. And why do you think that is?
A. In [LJD.’s] case I think it’s because she had lived in this situation for such a long period of time that she had in my opinion given up hope that anything would change, that she was resigned to the way she lived, to the things that happened to *573her; and it was just normal to talk about it like that.
Q. Do you find that resignation to be common?
A. Yes.
Q. Does it kind of depend upon whether the abuse is long term or short term?
A. I see it much more often in children who have been abused over a long period of tone.
Q. Did you — as time went on, did you notice any changes in her?
A. Yes.
Q. Can you tell us about that?
A. Yes. Today she is quite a different child than she was when I first began to see her. She talks more about the abuse that occurred to her, the different incidents. She can talk about that with much more freedom now.
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Q. Have there been any other changes in [L.D.] that you noticed?
A. I think less depressed than initially. She has talked with me. It has taken until this spring until she trusted me to explain to me some of the times where she felt like killing herself and some attempts to hurt herself. She was veiy fearful that I would say she would go to a mental hospital if she told me things. She was worried about that.
Q. What are the attempts she made to hurt herself?
A. She has described to me a time when she took what she would call an overdose of Tylenol. I don’t know how many pills that was. It was sometime ago; but when she took a lot of Tylenol, she said this was when she was in her mother’s custody. At other times she scratched herself with her nails or with a nail file. Again, I think I call this self mutilation, just an attempt to hurt herself. Another time she described thinking about and planning to and actually laying down behind a car that was parked in the street. The car did not move, but her intent was to have something terrible happen to her because she wasn’t worth anything in her mind.
Q. These attempts at self mutilation, is that common in incest victims?
A. Yes.
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Q. Do you find it common or uncommon for children who have been the victims of incest to recant soon after they made a disclosure?
A. Yes.
Q. Why do you think that is?
A. They realize that once they have made an outcry or made a disclosure to someone who has indeed taken them seriously and report it to the police or to Children’s Protective Services, they realize, I think, that they have set in motion something they can’t control at all; and they become very fearful that they have wrecked their family, that they are going to be responsible for someone going — possibly being arrested, going to jail, their mother or father hating them, of being the focus of a lot more anger and disgust than they have had in the past. And the fear of the unknown is very frightening to a child. Q. Can you describe what a parentified child is?
A. A parentified child is a child who over a course of years has had to take on several different roles within the family, many of them which are not appropriate for a child her age. And in [L.D.’s] case she at times felt she had to take care of her mother. At times she was a sexual partner for her stepfather, at times she was supposed to be a normal child. It’s at times she could be a normal child. So, there were a variety of roles; but the main ones when you call a child parentified, they have taken on roles of a parent.
Q. Did you see those symptoms in [L.D.]?
A. Yes.

Appellant first contends that Ginsberg was allowed to testify without objection to her opinion that appellant sexually abused L.D. Although Ginsberg did not directly state such an opinion, we agree it was implicit in the above-quoted testimony. Appellant further contends this opinion testimony was inadmissible under Dcmbert because it was subjective rather than factually based. Specifically, *574he contends the only facts Ginsberg elicited to support her opinion can also be present in children who are not sexually abused, ie., a resigned and withdrawn attitude, attempts at self-mutilation, and recanting a story. Appellant implicitly argues that the judge would not have admitted Ginsberg’s opinion testimony if defense counsel had taken Ginsberg on voir dire at the beginning of her direct examination and objected to the testimony after establishing the basis of her opinion. See TexR.Crim.Evid. 705(b).

It is within the trial court’s discretion whether to allow a witness to testify as an expert. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App.1981). Appellant cites no Texas cases, and we know of none, holding counsel ineffective for failing to object to such testimony. The cases he relies on, Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App.1993), and Duckett v. State, 797 S.W.2d 906, 917 (Tex.Crim.App.1990), both held, unanimously in Cohn and by an 8-1 majority in Duckett, that similar testimony was admissible.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Tex.R.CRIM.Evid. 702. The Court of Criminal Appeals has interpreted rule 702 similarly to Fed.R.Evid. 702 in Daubert. See Kelly v. State, 824 S.W.2d 568, 571-73 (Tex.Crim. App.1992). In Kelly, the court addressed the admissibility of novel scientific evidence. Id. Ginsberg’s testimony, however, was not based on a novel scientific test or theory, but on her consultations with L.D. and her 20 years of experience in working with sexually abused children. Based on this experience, Ginsberg testified she had noticed common behavioral patterns in children sexually abused by a family member, and L.D. displayed many of these behaviors. Thus, appellant has not shown that counsel was deficient by not objecting on the basis of rule 702.

Appellant also asserts counsel was ineffective for not objecting based on Tex R.Crim.Evid. 705(c) because Ginsberg’s testimony did not have a sufficient basis. There is language in Cohn suggesting that testimony like Ginsberg’s “may well have been objectionable” under rule 705(c). 849 S.W.2d at 819. In discussing the relevancy of expert testimony describing the behavior of sexually abused children, the court stated:

The probative value of expert testimony describing behaviors observed in young sexually abused children is highest when there is a coalescence of three types of behaviors: (1) a central core of sexual behaviors which are strongly associated with sexual abuse; (2) nonsexual behaviors which are commonly observed in sexually abused children; and (3) medical evidence of sexual abuse.
Probative value declines as sexual behaviors and medical evidence decrease in proportion to nonsexual behaviors. When the only evidence consists of a number of ambiguous, nonsexual behaviors, the evidence may lack any probative value, or probative worth may be outweighed by the potential for unfair prejudice or jury confusion.
When a child demonstrates no sexual behaviors, but does experience signs of serious anxiety or post-traumatic stress disorder, expert testimony may still be relevant. In this scenario, however, testimony serves only to establish that the child may have experienced some type of traumatic event. Such testimony is not specific to sexual abuse.
Absent medical evidence or evidence of behavior more closely determinative of sexual abuse, it seems the psychological community is unwilling to find evidence of anxiety sufficient to support the conclusion, even to a reasonable clinical certainty, that sexual abuse has necessarily occurred. Therefore, to the extent Roy’s testimony may have suggested that evidence of anxiety behavior is enough in and of itself to indicate sexual abuse, it may well have been objectionable under Tex. R.Crim.Evid., Rule 705(c). But to the extent it only provided circumstantial evidence that the children did experience *575some traumatic event, Dr. Roy’s testimony, both that anxiety behavior is at least consistent with sexual abuse, and that the children here exhibited such behavior in his presence, was relevant evidence, under TexR.Crim.Evid., Rules 401 & 402. It should come in as substantive evidence unless “its probative value is substantially outweighed by the danger of unfair prejudice ...” TbxR.Crim.Evid.,Rule408.
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Dr. Roy’s testimony that the children exhibited anxiety behaviors is circumstantial evidence that something traumatic happened to them. That this evidence in some small measure corroborates the children’s own testimony that appellant sexually molested them does not make it any less relevant — in fact, quite the opposite. Of course, like all corroborating evidence, because it is consistent with the children’s story, it also has a tendency to make their testimony more plausible. But we should not for that reason exclude it for “unfair prejudice” under Rule 408, supra.

Cohn, 849 S.W.2d at 818-20 (footnotes and interior quotes omitted) (emphasis in original).

Even if Ginsberg’s testimony was objectionable under rule 705(c), to the extent it suggested that “anxiety behavior is enough in and of itself to indicate sexual abuse,” 849 S.W.2d at 819, and even if defense counsel had objected on this basis, the prosecutor still could have used Ginsberg’s testimony to prove that anxiety behavior was “consistent” with sexual abuse and that L.D. exhibited such behavior in Ginsberg’s presence. See id. at 819; TexR.Crim.Evid. 401-02. The Cohn case does not make testimony like Ginsberg’s inadmissible per se, and the difference between testimony that “may” be inadmissible under Cohn and that which Cohn expressly allows is not so great that there is a reasonable probability the outcome of the trial would have been different if counsel had objected.

No Challenge to Competency of Witness

Appellant contends counsel was ineffective for not challenging L.D.’s competency to testify. L.D. was interviewed numerous times before trial by C.P.S. workers, by a pediatrician, and by Ginsberg. Based on Michaels, a New Jersey case, appellant contends defense counsel could have established L.D.’s sexual memories were implanted and challenged her competency to testify.

We decline to hold defense counsel ineffective for not relying on nonbinding authority from another jurisdiction. Further, an objection to L.D.’s competency would likely have been overruled. A witness with personal knowledge may testify. TexR.Crim.Evid. 602. L.D. had personal knowledge. Thus, appellant’s contention that L.D. could have been shown to be an incompetent witness is, at best, highly speculative.

Finally, L.D.’s initial outcry statement, which of course was made before any interviews, was more damaging to appellant than L.D.’s trial testimony. In her outcry statement, L.D. said appellant tried to put his penis in her several times, kissed her “all over” and made her kiss him “all over,” told her it was okay if she “swallowed it,” and touched her “private parts” with his tongue and hand. Under these circumstances, we conclude that counsel’s decision not to pursue this strategy was not deficient, and in addition, there is no reasonable probability that pursuing it would have led to a different result at trial.

No Objection to Improper Interrogation

Appellant next contends defense counsel was ineffective for not objecting to improper pretrial interrogation of L.D. Appellant asserts counsel should have introduced into evidence three videotaped pretrial interviews with L.D. to show she was improperly coached during the interviews. The videotapes are not part of the record. Therefore, no deficiency has been shown.

Appellant next argues counsel should have objected that C.P.S. interviewed L.D. without recording some of the interviews. There is no recording requirement. Therefore, counsel was not deficient.

No Request for Limiting Instructions

Appellant next contends counsel was ineffective for not requesting limiting in*576structions as to the testimony of witnesses who were not outcry witnesses. See Tex. Code Crim.Proc. art. 38.07.2 Appellant relies on Brown v. State, 649 S.W.2d 160 (Tex.App.— Austin 1983, no pet.), in which the court held an expert who is not an outcry witness under article 38.07 may still testify about an outcry statement in order to show the basis for his expert opinion. Id. at 163 (doctor who testified as medical expert could relate statement by victim). The court did not hold that limiting instructions were required, nor did the defendant there contend they were. The contention on appeal was that the doctor’s testimony was inadmissible hearsay. Id. at 161. The court observed that no limiting instruction was requested; thus, any potential error was waived. Id. at 163. Moreover, appellant does not state what limiting instruction should have been given. Thus, no deficiency has been shown.

No Objection to Mertelle Norton’s Testimony

Mertelle Norton, L.D.’s grandmother, testified as an expert witness for the State. Appellant contends counsel was ineffective for not objecting to Norton’s testimony because (1) Norton was not qualified as an expert witness, and (2) Norton’s testimony that L.D. was sexually abused was based on symptoms that are consistent with traumatic experiences other than sexual abuse. Norton’s testimony regarding the symptoms of sexual abuse was cumulative of Ginsberg’s testimony. Therefore, appellant cannot show the lack of objection constituted ineffective assistance. Moreover, Norton’s suspicions of abuse were based on her education, training, and experience as a pediatric nurse. Because the qualifications of experts is a discretionary matter for the trial judge to decide, appellant has not shown that an objection on this basis to Norton’s testimony would have been sustained.

Finally, we observe that trial counsel convinced the judge to grant appellant probation, even though the State argued for the maximum sentence of 20 years. Although appellant, for this obvious reason, does not attack counsel’s performance at the punishment stage, this fact also influences our conclusion that counsel was not ineffective.

We overrule point of error four.

We affirm the judgment.

. Rule 705(c) states:

Admissibility of opinion. If the court determines that the expert does not have a sufficient basis for his opinion, the opinion is inadmissible unless the party offering the testimony first establishes sufficient underlying facts or data.

. That article provides:

A conviction ... is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.