Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00699-CR
Kenneth John GRABOWSKI,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR2572
Honorable Lori I. Valenzuela, Judge Presiding
Opinion by: Jason Pulliam, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: November 2, 2016
AFFIRMED
A jury found Kenneth Grabowski guilty of the offenses of aggravated sexual assault of a
disabled individual and prohibited sexual conduct. The trial court assessed punishment and
sentenced Grabowski to two concurrent sixty year terms of imprisonment. In three issues on
appeal, Grabowski contends the evidence is insufficient to support the jury’s finding of guilt for
aggravated sexual assault; the trial court erred by allowing the testimony of the State’s outcry
witness; and the State’s expert was not qualified to testify regarding the complainant’s ability to
consent. The trial court’s judgment is affirmed.
04-15-00699-CR
BACKGROUND
Grabowski is the step-father of the complainant, who was diagnosed with moderate to
severe intellectual disability, or mental retardation, at an early age. When the complainant was in
middle school, she scored 40 on the Wechsler Intelligence Scale for Children, and she scored
below 40 on the Goldman-Fristoe Test of Articulation. Although thirteen years’ old at the time of
the testing, the complainant’s adaptive behavior level was that of a child three years’ and three
months’ old. A reevaluation conducted in 2013, when the complainant was eighteen years’ old,
indicated she was eligible for continuation in the special education program.
On January 8, 2014, the complainant’s mother (“Mother”) took the complainant to visit
Dr. Avril Jules because the complainant was experiencing pelvic discomfort. Dr. Jules attempted
to question the complainant about her medical history, but the complainant did not respond in an
understandable manner. Rather, Mother provided the complainant’s medical history. According
to Mother, the complainant had been experiencing pelvic pain and discomfort for approximately
two weeks prior to the medical visit. Also, according to Mother, the complainant had not
experienced a menstrual cycle since November 2013 and was not sexually active.
Dr. Jules was able to conduct a basic heart and lung examination, but the complainant was
apprehensive when Dr. Jules conducted an abdominal pelvic examination. The complainant did
not cooperate during the female genitalia examination. Although the complainant would not allow
a comprehensive visual examination of her genitalia or the use of a speculum, Dr. Jules obtained
genital swabs, which she sent to the lab for testing. Dr. Jules ordered blood and urine tests, as well
as an abdominal ultrasound. The ultrasound results indicated the complainant was sixteen weeks
and one day pregnant, and the blood test results indicated a positive result for chlamydia.
According to Dr. Jules, the complainant displayed no reaction or understanding when she learned
she was pregnant during her follow up examination on January 29, 2014.
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On January 31, 2014, the complainant became agitated at school because she could not
find her backpack. During the course of the incident, the complainant indicated to school faculty
members she was going to have surgery in her abdominal area. Cheryl Danner, the school
psychologist, noted the complainant’s belly protruded and the complainant appeared pregnant.
The complainant eventually informed Danner she had a baby in her belly and her daddy put it
there.
School officials contacted the San Antonio Police Department (“SAPD”) because they
suspected the complainant had been the victim of sexual assault. The complainant reacted badly
to the presence of a male school district police officer, and SAPD Officer Gladys Williams was
called to the scene. Officer Williams spoke with the complainant for approximately thirty minutes
alone in a separate room. According to Officer Williams, the complainant was a little upset, shy
and “closed” during the interview, and each time Officer Williams tried to speak with the
complainant about her pregnancy and why the police had been called, the complainant returned to
talking about the missing backpack. Officer Williams was not able to conclude a sexual assault
occurred.
The complainant gave birth to a son, KA, in July 2014. SAPD investigators obtained
buccal swabs from the complainant, Grabowksi, and KA for the purpose of DNA testing. The
DNA testing results indicated Grabowski could not be eliminated as KA’s father.
A grand jury indicted Grabowski for aggravated assault of a disabled person and prohibited
sexual conduct. A jury found Grabowski guilty of both offenses, and the trial court assessed
punishment at two concurrent sixty year terms of imprisonment.
This appeal followed.
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DISCUSSION
Sufficiency of the Evidence
Grabowski contends the evidence presented at trial is insufficient to support his conviction
for aggravated sexual assault of a disabled individual. Specifically, Grabowski argues the State
failed to present sufficient evidence the complainant lacked capacity to consent because the State’s
case relied on establishing the complainant’s disability as the exclusive means of negating her
ability to consent. Grabowski argues evidence of disability cannot be the sole basis for negating
an individual’s capacity to consent.
Standard of Review
When examining the sufficiency of the evidence, an appellate court considers all the
evidence in the light most favorable to the conviction to determine whether, based on the evidence
and reasonable inferences therefrom, a rational trier of fact could have found each element of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
As the factfinder, the jury is the exclusive judge of witness credibility and the weight of
the evidence. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). The jury is permitted
to draw any reasonable inferences from the evidence so long as the inference is supported by the
record. Id. Further, the reconciliation of conflicts in the evidence is within the factfinder’s
exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). If a record supports
conflicting inferences, the appellate court presumes the factfinder resolved the conflicts in favor
of the prevailing party and therefore defers to that determination. Jackson, 443 U.S. at 319;
Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the incriminating circumstances is sufficient to
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support the conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Canida v. State, 446 S.W.3d 601, 605
(Tex. App.—Texarkana 2014, no pet.).
Application
To prove the charge of aggravated sexual assault of a disabled individual, the State must
prove beyond a reasonable doubt that the defendant “intentionally or knowingly cause[d] the
penetration of the sexual organ of another person by any means, without that person’s consent and
the victim is a disabled individual.” See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(c)
(West Supp. 2016). Consent, in the context of a sexual assault, is not effective if “the actor knows
that as a result of mental disease or defect the other person is at the time of the sexual assault
incapable either of appraising the nature of the act or of resisting it.” Id. § 22.011(b)(4) (West
2011).
In this appeal, Grabowski does not contest penetration occurred or the complainant was a
disabled individual. Rather, Grabowski contends only the State failed to prove lack of consent
beyond a reasonable doubt because the State presumed the complainant was incapable of
consenting to sexual activity and therefore did not sufficiently prove lack of consent. Grabowski
argues the existing case law in this area is antiquated and fundamentally incompatible with the
United States Supreme Court’s opinion in Lawrence v. Texas, which Grabowski asserts established
a fundamental right to engage in sexual activity. See Lawrence v. Texas, 539 U.S. 558 (2003).
Grabowski asserts the evidence presented at trial shows the complainant consented to the sexual
activity with Grabowski.
This court concludes Grabowski’s reliance on Lawrence is misplaced. The Lawrence
Court specifically indicated its holding did not extend to children and those unable to consent. See
Lawrence, 539 U.S. at 578. The issue in Lawrence, as described by the Supreme Court, was
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“whether the petitioners were free as adults to engage in the private conduct in the exercise of their
liberty.” Id. at 564. The Court emphasized the State should avoid “defin[ing] the meaning of the
relationship or to set its boundaries absent injury to a person or abuse of an institution the law
protects.” Id. at 567. The Court concluded its ruling did not involve minors, non-consenting or
coercive relationships, but rather “two adults who, with full and mutual consent from each other,
engaged in sexual practices common to a homosexual lifestyle.” Id. at 578. The holding in
Lawrence was thus limited to a situation in which there is “no legitimate state interest.” See id.
Therefore, that decision cannot be rationally used as a basis to argue the same standard should
apply when the State has a legitimate interest at stake, such as that of protecting disabled
individuals from sexual abuse. See id. In Lawrence, the Supreme Court carefully drew lines to
ensure the State remains free to enact legislation that gives effect to its legitimate interest in the
protection of disabled individuals. See id.
Long-standing Texas law instructs that the purpose of the effective consent provision
contained in the Texas Penal Code is to protect those whom the law deems incapable of consent.
See Rider v. State, 735 S.W.2d 291, 293 (Tex. App.—Dallas 1987, no writ.). The Penal Code
defines a “disabled individual” as “a person older than 13 years of age who by reason of age or
physical or mental disease, defect, or injury is substantially unable to protect the person’s self from
harm or to provide food, shelter, or medical care for the person’s self.” See TEX. PENAL CODE
ANN. § 22.021(b)(3) (West Supp. 2016). In sexual assault cases in which the complainant is
disabled, the relevant issue is whether the complainant has the capacity to consent to the sexual
encounter. See Rider v. State, 735 S.W.2d 291, 293 (Tex. App.—Dallas 1987, no writ.).
At the time of the underlying offense, the complainant was a nineteen-year-old senior in
high school enrolled in a transitional vocational class for five periods of the school day. The
complainant’s instructional level as a senior was labeled as “K,” or Kindergarten. According to
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Estella Martinez, the complainant’s teacher, the complainant was not able to spell her name
correctly. Further, the complainant was not able to correctly answer any questions when tested for
social judgment and common-sense reasoning. Additionally, the evidence presented at trial shows
the complainant’s IQ is 40, which is the lowest score possible.
Wendy Smart, the psychologist who administered the tests to the complainant, testified
individuals with the complainant’s level of disability require support for nearly all activities that
comprise daily living, including meals, dressing, bathing, and elimination. According to Smart,
such individuals are not able to make responsible decisions regarding their own well-being.
Finally, Smart testified a person with the complainant’s level of disability would not be able to
understand the consequences of deciding whether to have sexual intercourse.
Martinez testified the complainant was someone who wanted to please others and would
generally do what was asked of her by someone in authority. Martinez also testified that when she
spoke with the complainant about being pregnant, she was uncertain the complainant even
understood the concept of pregnancy. Dr. Jules also testified the complainant had no reaction to
the news of her pregnancy.
Danner testified the complainant was “quite impaired” and was diagnosed with moderate
to severe intellectual disability. According to Danner, the complainant spoke very simplistically
and it was evident nearly immediately upon meeting her the complainant is disabled. Danner also
testified it was difficult to converse with the complainant because her speech was difficult to
understand. Danner further testified the complainant was substantially unable to provide food,
shelter, or medical care for herself or protect herself from harm. Finally, Danner testified it was
her opinion the complainant did not have the capacity to consent to sexual intercourse. School
nurse, Mary Francis Bard, additionally described the complainant as “someone who does not have
the mental capacity to consent to at any time or understand the consequences of sexual activity.”
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Danner testified the complainant, although not requiring behavior intervention, required
significant supervision in all areas. According to Danner, the complainant was not able to find
unfamiliar areas on the high school campus without assistance, and she was not allowed to go out
alone in the neighborhood, to school, or other places appropriate for her age. Danner described
the complainant as having cognitive problems with additional difficulties concentrating,
remembering, and making decisions. Danner also described the complainant as a person who
wanted to please others and was easily directed by those in authority. Danner verified Grabowski
was listed as a contact, as well as the complainant’s father, in the school’s computer system.
Danner additionally verified Grabowksi completed paperwork on the complainant’s behalf.
The complainant also identified Grabowski as her step-father or dad and testified on cross-
examination that Grabowski had done nothing to hurt her and had not forced her to do anything
she didn’t want. The complainant testified she wanted Grabowski to return and live with her
family. The complainant verified Grabowski is KA’s father.
In this case, the jury was authorized to find Grabowksi committed aggravated assault if the
jury found the complainant was a disabled individual and Grabowski penetrated the complainant’s
sexual organ without the complainant’s consent. To find a lack of effective consent, the jury was
required to find Grabowski knew that as a result of mental disease or defect the complainant, at
the time of the sexual assault, was incapable either of appraising the nature of the act or of resisting
it. The jury was permitted to infer Grabowski penetrated the complainant’s sexual organ from the
testimony Grabowksi could not be excluded as the father of the complainant’s child. Further, the
jury was presented with evidence the complainant was substantially unable to protect herself from
harm or to provide food, shelter, or medical care for herself.
Finally, with regard to the issue of consent, the jury heard testimony from school officials
who interacted regularly with the complainant or administered tests to her, as well as the
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complainant herself. School officials testified the complainant would not be able to understand
the consequences of having sexual intercourse and additionally did not possess the capacity to
consent to do so. The complainant testified Grabowksi had never done anything to her she did not
want and had not hurt her. The jury was within its rights as the factfinder to resolve any conflict
between the complainant’s and school officials’ testimonies in the school officials’ favor. See
Jackson, 443 U.S. at 319; Wyatt, 23 S.W.3d at 30.
When the evidence is viewed in the light most favorable to the verdict, a rational factfinder
could have found the complainant is a disabled individual and Grabowski penetrated the
complainant’s sexual organ without the complainant’s consent. Consequently, the court concludes
the evidence in this case is sufficient to sustain the jury’s finding that Grabowski committed the
offense of aggravated sexual assault.
Issue one is overruled.
Outcry Statement
In his second issue, Grabowski contends the trial court erred by admitting Danner’s
testimony regarding D.A.’s outcry statement because the statement did not satisfy the requirements
of Texas Code of Criminal Procedure article 38.072.
Standard of Review and Applicable Law
This court reviews the trial court’s decision to admit or exclude an outcry statement for an
abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). A trial court has
“broad discretion” to determine the admissibility of outcry evidence, and this court will not disturb
the trial court’s determination as to the proper outcry witness absent a showing in the record that
the trial court clearly abused its discretion. Id. A trial court abuses its discretion when its
determination lies outside the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000).
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Article 38.072 establishes an exception to the hearsay rule, applicable in proceedings for
the prosecution of certain listed offenses, for statements made by a disabled victim “to the first
person, 18 years of age or older, other than the defendant, to whom the [victim] … made a
statement about the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2015). To
be admissible under article 38.072, outcry testimony must be elicited from the first adult to whom
the outcry is made. Id. at § 2(a)(1)-(3); Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App.
2013). Further, the statement about the offense must be more than “a general allusion that
something in the area of child abuse was going on.” Lopez v. State, 343 S.W.3d 137, 140 (Tex.
Crim. App. 2011); Reyes v. State, 274 S.W.3d 724, 727-28 (Tex. App.—San Antonio 2008, pet.
ref’d). The evidence must show the victim described the alleged offense in some discernible
manner to the witness. See Lopez, 343 S.W.3d at 140.
Application
The trial court held a hearing outside the presence of the jury and determined Cheryl
Danner was a proper outcry witness. In front of the jury, Danner testified the complainant was
sobbing and shaking, placed her head in Danner’s lap, and told Danner that Mother told her not to
talk. According to Danner, the complainant stated Mother took her to the doctor and the doctor
poked her belly. When Danner asked the complainant how she got the baby in her belly, the
complainant responded, “Daddy did this. And he should lay in bed, or sleep in bed, with mommy
and do the nasty with mommy.” Danner testified the complainant further told her, “I shouldn’t
have to have a baby. Mama should have to have a baby.”
The statements made by the complainant allude to sexual activity between Grabowski and
the complainant but they do not describe the alleged offense with any specificity or in any
discernible manner. The how, when, and where relative to the alleged abuse cannot be determined
from the complainant’s statements to Danner, and the information related by the complainant to
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Danner does not touch upon the detail required by article 38.072. Accordingly, this court
concludes the trial court abused its discretion when it allowed Danner to testify as the outcry in
this case.
Having determined the trial court abused its discretion, this court must next determine
whether the error is reversible. See TEX. R. APP. P. 44.2(b). The admission of inadmissible hearsay
testimony is non-constitutional error, and it will be considered harmless if, after examining the
record as a whole, this court is reasonably assured the error did not influence the jury’s verdict or
had but a slight effect. Id; Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004).
Catherine Haskins-Miller, a forensic scientist with the serology and DNA section of the
Bexar County Criminal Investigations Lab, tested the DNA samples obtained from the buccal
swabs. Haskins-Miller also examined and compared the DNA testing results, which indicated
Grabowski could not be excluded as KA’s father. Haskins-Miller testified Grabowski was 610,400
times more likely to be the biological father of complainant’s son than a random unrelated
individual and stated the likelihood of Grabowski being the father of the complainant’s son was
greater than 99.9%. Thus, Danner’s testimony regarding the complainant’s statements was not the
only testimony before the jury establishing the parentage of the complainant’s child or that the
sexual act occurred between Grabowski and the complainant.
Accordingly, having considered the record as a whole, this court is reasonably assured the
trial court’s erroneous admission of the evidence had but a slight effect, if any effect at all, on the
jury’s verdict. See Garcia, 126 S.W.3d at 927.
Issue two is overruled.
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Expert Testimony
In his third issue, Grabowski contends the trial court erred by allowing Danner to testify
outside the scope of her legal expertise. Grabowski specifically complains Danner was not
qualified to testify regarding D.A.’s ability to consent.
Standard of Review
This court reviews the trial court’s determination regarding the admission of expert
testimony and experts’ qualifications under an abuse of discretion standard. Lagrone v. State, 942
S.W.2d 602, 616 (Tex. Crim. App. 1997); Acevedo v. State, 255 S.W.3d 162, 166 (Tex. App.—
San Antonio 2008, pet ref’d). An abuse of discretion occurs when the trial court’s decision lies
outside the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542.
To preserve a complaint for appellate review, the complaining party must make a timely
objection to the trial court which states the grounds with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds are apparent from the context. TEX. R.
APP. P. 33.1(a)(1). The complaining party must let the trial court know what he wants and why he
thinks he is entitled to it, and he must do so clearly enough for the trial court to understand and at
a time when the trial court is in a position to do something about it. Bekendam v. State, 441 S.W.3d
295, 300 (Tex. Crim. App. 2014). Further, the complaint on appeal must comport with the
objection made at trial. Id.
Application
Rule of Evidence 702 provides ‘[i]f 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. EVID. 702. To be qualified to provide expert
opinion testimony, the witness must possess some additional knowledge or expertise beyond that
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possessed by the average person, but that gap need not necessarily be monumental. Davis v. State,
313 S.W.3d 317, 350 (Tex. Crim. App. 2010).
During Danner’s testimony, the State repeated the legal definition of a disabled person and
then asked Danner, “Does [the complainant] meet this definition?” Grabowski made the following
objection: “I’m sorry. The witness may be an expert in many things, but she is not qualified to
render a legal conclusion as to what — to whether or not [the complainant] met the criteria.” The
trial court overruled the objection.
On appeal, Grabowski presents his complaint as “[t]he State’s expert was not qualified to
testify to the inability of the complainant to consent. The trial court erred when it allowed this
testimony before the jury over the objection of counsel.” Grabowski then argues “[t]here was no
testimony that Mrs. Danner has any experience in sexuality of disabled persons, the ability of
disabled persons to consent to sex, or sexual abuse.” Grabowski, however, does not point this
court to any portion of the record where he objected to Danner’s expert testimony regarding the
complainant’s ability to consent. Accordingly, this court concludes Grabowski’s lack of objection
to Danner’s expert testimony regarding the complainant’s ability to consent waives his complaint
of issue three on appeal. See Tex. R. App. P. 33.1(a).
Issue three is overruled.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed.
Jason Pulliam, Justice
DO NOT PUBLISH
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