No. 05-02-01915-CR
Opinion Filed August 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-43277-IN. Affirmed.
Before Chief Justice THOMAS and Justice O'NEILL and MAZZANT.
The Honorable Amos Mazzant, Justice, succeeded the Honorable Tom James, a member of the original panel, upon Justice James's retirement. Justice Mazzant has reviewed the briefs and the record before the Court.
Opinion By Chief Justice THOMAS.
A jury convicted Dennis Wayne Ard of aggravated sexual assault of a child and assessed punishment at sixty years in prison. In four issues, appellant complains about factual sufficiency of the evidence, exclusion of expert testimony, a ruling on disclosure of juror information cards, and ineffective assistance of counsel. We affirm the trial court's judgment.
FACTUAL BACKGROUND
The complainant B.C. was eight years old at the time of the alleged offense. Appellant was married to B.C.'s aunt. The families were close enough that B.C. often visited in his aunt's home. On one occasion, B.C. slept in the bed with appellant while his aunt slept on the couch. According to B.C., appellant forced him to engage in oral sex that night. B.C. did not tell anyone at that time. A few months later it was discovered that B.C. had instigated and engaged in oral sex with two other boys. During therapy, B.C. made an "outcry," which led to appellant's arrest and indictment. FACTUAL SUFFICIENCY OF THE EVIDENCE
Appellant first contends the evidence is factually insufficient to support his conviction. Specifically, he argues B.C's testimony was the "product of suggestive questioning by his parents and by improper interviewing techniques by his counselors." In a factual-sufficiency review, we must consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *6-7 (Tex.Crim. App. Apr. 21, 2004), Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Zuniga, 2004 WL 840786, at *7. Second, there may be evidence both supporting the verdict and contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand See Id. In examining a factual sufficiency challenge, we defer to the jury's determination of the credibility of the witnesses. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). It is the jury's duty to resolve conflicts in the evidence. Cain v. State, 958 S.W.2d 404, 408-409 (Tex.Crim.App. 1997). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). B.C. testified that he spent the night with his aunt and appellant because they were going to Hurricane Harbor the next day. He and appellant were play-wrestling on the bed when appellant got on top of B.C. and touched his penis. Appellant then took off his boxer shorts and told B.C. to do the same. Appellant held B.C.'s hands against his penis and then forced B.C. to take appellant's penis in his mouth. B.C. also stated that he later showed two boys how to "kiss" his penis, and that he had gotten the idea from appellant. On cross-examination, B.C. admitted he took a long time to make an "outcry." He did not raise the issue with anyone, including his therapists. Therapists testified B.C. was suffering from post-traumatic stress disorder due to sexual abuse. The counselor to whom B.C. made his "outcry" testified that she initiated the discussion with B.C. about sexual abuse, and she presumed there had been sexual abuse because of her discussion with B.C.'s mother. It took numerous sessions for the entire story to come out. The counselor's testimony about the occurrence corresponded with B.C.'s testimony. B.C.'s mother testified that on several occasions her son avoided being around his aunt and appellant. She stated that B.C. never brought up the issue of sexual abuse to her or his father. However, when asked by his mother or his youth minister (she could not remember which), B.C. affirmed that appellant had sexually assaulted him. B.C.'s youth minister testified that B.C. admitted, outside of his parents' presence, that appellant had touched his genitals while they were wrestling. Richardson police detective Ron Ridley testified he was assigned to investigate the case. During his interview with B.C., the child told Detective Ridley that appellant touched B.C.'s penis over his clothes. However, he did not relate any other details. Detective Ridley believed B.C. was not telling the whole story. B.C.'s aunt testified that B.C. became jealous when she began spending more time with appellant than with him. She said that she allowed B.C. to sleep in her bed only because he threw a fit about having to sleep on the couch. She also stated that she periodically took B.C. to the bathroom during the night in question because he had a bed-wetting problem. She admitted, however, that she did not tell the police about B.C.'s fit or taking him to the bathroom when the police first questioned her. She asserted that her husband and B.C. were never alone together, except on two occasions when they went to a Sonic drive-in restaurant. She identified pictures taken at Hurricane Harbor the day after the alleged sexual abuse and a year later at a family gathering. B.C. appeared to be happy and did not look uncomfortable in appellant's presence. A Child Protective Services social worker testified that she interviewed B.C. at the request of the police. She stated that she was concerned about B.C. being influenced by a therapist and a lawyer. She was also concerned about B.C.'s demeanor during the interview and with the lack of details in his description of the molestation. However, she agreed that it is not unusual for a child to give some details about an offense, then as time progresses and they feel more comfortable, to give more details. The social worker did not disbelieve B.C.'s allegations. Dr. Michael Gottlieb, a psychologist, testified as a defense expert on how memory can be influenced or altered. He based his opinions on a review of the depositions taken in a civil case and B.C.'s medical records. Dr. Gottlieb testified that he believed the outcry counselor's therapy with B.C. was medically unethical because she assumed dual roles of both therapist and investigator and, therefore, may have been unduly suggestive. He also testified that counseling or psychotherapy has the potential of influencing a child's memory. It was the duty of the jury to resolve any conflicts and inconsistencies in the evidence. Considering all of the evidence in a neutral light, we cannot say the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt. Neither can we say contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Consequently, we conclude the evidence is factually sufficient to support the conviction and we, accordingly, overrule appellant's first issue. EXCLUSION OF EXPERT TESTIMONY
Appellant next contends the trial court abused its discretion in excluding Dr. Gottlieb's opinion that therapists could implant memories. 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 qualified expert may testify thereto in the form of an opinion. Tex. R. Evid. 702. It is the burden of the proponent of scientific evidence to show by clear and convincing proof that the proffered evidence is sufficiently relevant and reliable to assist the jury. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The reliability of "soft" science evidence, such as that at issue in this case, may be established by showing: (1) the field of expertise involved is a legitimate one; (2) the subject matter of the expert's testimony is within the scope of that field; and (3) the expert's testimony properly relies upon or utilizes the principles involved in that field. Id. We will not disturb the trial court's decision to exclude expert testimony absent an abuse of discretion. Id. It is an abuse of discretion if the trial court's decision to exclude the evidence is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Applying these principles to Dr. Gottlieb's testimony, we conclude the trial court did not abuse its discretion in excluding the proffered opinion. The trial court held a hearing to determine if Dr. Gottlieb's testimony was admissible. Dr.Gottlieb testified that there are anecdotal reports of psychotherapists implanting memories, but "there are no empirical research studies that could be done ethically where you would deliberately create false memories in a child in a real psychotherapy situation." He cited two researchers who published studies about implanting memories in general, but none showed that therapists, in particular, can and do implant memories by virtue of the fact that they are therapists. Dr. Gottlieb also testified that research is available which shows that because of all the "challenges" to memory, psychotherapists are in a position of extraordinary power where they must deal with this information quite delicately so as to avoid even a hint of trying to implant memories in their patients. The trial court allowed Dr. Gottlieb to testify on memory in general, including memory degradation, the effect of age on memory, and the constructive quality of memory. The court also allowed him to testify that a person can adopt ideas if they are suggested to him over time, social demands will sometimes make a person say what he believes is expected, and repetition over time can affect the way that a person inputs memory. The trial court refused, however, to allow testimony that psychotherapy, in and of itself, can reinforce implanted memory, cause implanted memory, or cause false outcry. The trial court's ruling was clearly within the zone of reasonable disagreement and not arbitrary or unreasonable. Accordingly, we overrule issue two. JUROR INFORMATION CARDS
In the third issue, appellant argues that the trial court erred when it denied his motion to view the juror information cards to determine if there had been juror misconduct during his trial. He recognizes that, under the code of criminal procedure, the requested information is confidential and may only be disclosed when there is a showing of good cause. See Tex.Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2004). Appellant does not direct this court to a single suggestion in the record that jury misconduct occurred. He merely argues that we should define good cause to mean the appellant has filed a good faith motion and the State has not shown the appellant intends to abuse the information. He further contends that good cause is shown because the denial of his motion deprived him of an impartial jury and of effective assistance of counsel. Our sister court in San Antonio has addressed this same argument and held that good cause must be based on more than the mere possibility that misconduct occurred. Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.-San Antonio 2000, no pet.) We agree with this holding. Because appellant has shown no factual or logical foundation for his request, there is no more than a mere possibility of misconduct. He has failed to show good cause for disclosure of the juror information. We overrule issue three. INEFFECTIVE ASSISTANCE OF COUNSEL
In the last issue, appellant alleges he was denied effective assistance of counsel during the punishment stage of the trial. To prevail on a claim of ineffective assistance of counsel, appellant must show trial counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence of trial counsel's errors. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant contends his trial attorney was ineffective at the punishment stage because he (1) failed to offer available testimony on the issue of punishment, (2) failed to offer expert testimony as to appropriate punishment, and (3) called appellant to testify. The affidavit of appellant's trial attorney was admitted into evidence at the motion for new trial hearing. The affidavit stated that trial counsel was aware appellant's wife, parents, and friends were available to testify. He was concerned the wife and parents were so upset that they might "jeopardize [appellant's] chances for leniency" by accusing the victim and his parents of lying "to obtain money." He was also afraid they might "offend the jury" by declaring that the verdict was wrong. He also stated that any testimony of appellant's friends would be cumulative of evidence already before the jury in the guilt or innocence stage. Trial counsel explained that he did not call an expert witness because the defense had been predicated upon appellant's innocence. Expert testimony that appellant would benefit from probation or sex offender counseling would have been based on the assumption that appellant was guilty and in need of such rehabilitation efforts. This would conflict with the defensive theory presented at the guilt/innocence stage. Trial counsel decided instead "to emphasize the availability of financial restitution as a condition of probation along with the ability of the court to at the same time monitor and supervise the [appellant] as well as provide any and all rehabilitative support as the court deemed necessary." Trial counsel said that he made appellant aware of the possible negative impression on the jury if he did not testify at the punishment hearing. Counsel also stated he made appellant aware of the danger, if he did testify, of cross-examination about his alleged homosexuality and an extraneous offense of public lewdness. Counsel then described how he instructed appellant not to argue with the prosecutor about his guilt, but to accept responsibility for the verdict and to express his willingness to comply with "all corrective measures." Counsel also stated that he had prepared appellant at length for his possible testimony and believed that appellant was a good candidate to testify on his own behalf. Appellant, his wife, and his parents contradicted statements in trial counsel's affidavit regarding discussions with them about testimony from them and other friends of appellant. Appellant also offered testimony that after the trial, Franklin Lewis, a clinical and forensic psychologist, had done two clinical interviews and administered two psychological tests to appellant. Dr. Lewis was ready to testify that appellant would not pose a threat to society or present a risk to reoffend, and that appellant was a good candidate for probation. Appellant also presented testimony from two attorneys who had reviewed the trial testimony and trial counsel's affidavit. Both attorneys disagreed with trial counsel's reasons for his decisions and strategy. It was their opinion that appellant had been denied the effective assistance of counsel during the punishment hearing, and that trial counsel's representation fell below an objective standard of reasonableness when he put appellant on the stand when he knew that appellant was still denying his guilt. The conflicting evidence regarding trial counsel's advice and discussions was resolved against appellant. Appellant's evidence amounted to a showing that the case could have been tried differently. However, the fact that other attorneys would have used a different strategy does not render trial counsel's assistance ineffective. The fact that additional witnesses were available does not show by a reasonable probability that the outcome would have been different if they had been called. Appellant must establish that trial counsel's representation fell below an objective standard of reasonableness. In light of the evidence at the guilt or innocence stage and trial counsel's stated reasons for his strategy, we cannot say that there is a reasonable probability the results of the proceedings would have been different in the absence of the alleged errors. After reviewing all the evidence, we conclude that appellant failed to prove by a preponderance of the evidence that his attorney's representation fell below an objective standard of reasonableness. Whether we agree with trial counsel's strategies is not determinative. Accordingly, we overrule appellant's fourth issue. We affirm the trial court's judgment.