Pinales v. State

Full title: MARIO PINALES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 6, 2009

No. 05-08-00412-CR (Tex. App. Jan. 6, 2009)

Opinion

No. 05-08-00412-CR

Opinion Filed January 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-33118-I.

Before Justices WRIGHT, O'NEILL, and LANG.

OPINION

Opinion By Justice LANG.

Mario Pinales appeals the trial court's judgment convicting him of indecency with a child under seventeen years of age. A jury found Pinales guilty and assessed his punishment at ten years of imprisonment. Pinales raises three issues on appeal arguing: (1) the evidence is legally insufficient to prove the precise sexual contact alleged in the indictment; (2) the evidence is factually insufficient to prove the precise sexual contact alleged in the indictment; and (3) the trial court erred when it excluded the testimony of Pinales's expert witness who was going to testify as to the reliability of child-victim testimony. We conclude the evidence is legally and factually sufficient. Also, we conclude the trial court did not err when it excluded Pinales's expert witness. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

At an after-church gathering, M.P., who was eleven years old at the time, began crying. Her cousin and a friend asked what was wrong. M.P. and her cousin went to their friend's apartment. Yolanda, the friend's mother and M.P.'s maternal aunt, B.G., followed the girls to Yolanda's apartment and found M.P. crying. B.G. directed Yolanda to take the other girls into another room. B.G. asked M.P. what was wrong and M.P. said "her dad did something to [her] that made [her] feel uncomfortable." M.P. said she went to sleep with her baby brother in her parents' bed. Pinales, M.P.'s father, got into the bed and moved the baby to the outside of the bed so he was in between M.P. and the baby. Pinales pulled M.P. on top of him so that her stomach was on his stomach and began rubbing her "butt." Then, he pointed his private part up and began moving M.P. up and down. M.P. was afraid and did not want Pinales to know she was awake so she tried to fall off of him, but Pinales "would fix her." M.P.'s mother, worked nights and was not at home during the incident. After listening to M.P., B.G. tried to reach M.P.'s mother on the telephone, but was unsuccessful. So she called M.P.'s maternal grandmother who told B.G. to take M.P. to B.G.'s house and she would meet them there with M.P.'s mother. M.P.'s mother arrived at her sister's house with her other children. M.P.'s mother called the police. Pinales was indicted for indecency with a child under seventeen years of age. His first trial ended in a mistrial. After his second trial, the jury found him guilty and assessed his punishment at ten years of imprisonment.

II. SUFFICIENCY OF THE EVIDENCE

In issues one and two, Pinales argues the evidence is legally and factual insufficient to prove the precise sexual contact alleged in the indictment. The indictment alleged contact between the "torso" of M.P. and the genitals of Pinales. He argues the evidence shows his "private" touched M.P.'s "private," not her stomach which is evidence of a violation of section 21.22(c)(1), not section 22.22(c)(2). The State responds that "torso" is defined as "the human body excluding the head and limbs; trunk," which by definition included M.P.'s genitals. Also, the State argues Pinales misunderstands the distinction between section 21.11(c)(1), which concerns offenses where unspecific parts of the defendant touch specific parts of a child, and section 21.11(c)(2), which concerns offenses where specific parts of the defendant, i.e., the anus, breasts, or any part of the defendant's genitals, touch any part of the child.

A. Standards of Review

Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625.

1. Legal Sufficiency

The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rollerson, 227 S.W.3d at 724; Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Chaddock v. State, 203 S.W.3d 916, 920 (Tex.Crim.App. 2006); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).

2. Factual Sufficiency

In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007); Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Obigbo v. State, 6 S.W.3d 299, 304 (Tex.App.-Dallas 1999, no pet.); Morales v. State, 95 S.W.3d 561, 563 (Tex.App.-Houston [1^st Dist.] 2002, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A clearly wrong and unjust verdict occurs when the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.

B. Applicable Law

In relevant part, section 21.11 of the Texas Penal Code proscribes engaging "in sexual contact with the child" or causing "the child to engage in sexual contact." See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003); see also Hines v. State, 269 S.W.3d 209, 2008 WL 4660166, *8 (Tex.App.-Texarkana Oct. 23, 2008, no pet.). The term "sexual contact" is defined as being either or both of the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code Ann. § 21.11(c); see also Hines, 2008 WL 4660166 at *8.

C. Application of the Law to the Facts

The indictment alleged Pinales:

unlawfully, intentionally and knowingly engage[d] in sexual contact with [M.P.], hereinafter called complainant, a child younger than 17 years of age and not then the spouse of [Pinales], by contact between the torso of the complainant and the genitals of [Pinales], with the intent to arouse and gratify the sexual desire of [Pinales].

Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to prove the precise sexual contact alleged in the indictment. During the trial, M.P. testified Pinales pulled her on top of him and moved her up and down. While this occurred, M.P. stated Pinales's "private part" touched her "private part," but "not [her] tummy." Also, she stated when the offense occurred both she and Pinales had clothes on, Pinales's private part was hard and "pointed up," Pinales's private part was never inside her private part, Pinales was making grunting noises, and after Pinales finished pulling her up and down on himself, he went to the bathroom. On a picture of a girl, M.P. circled a large area indicating her "private part." When asked to mark the spot on the picture of the girl where Pinales's private part touched her private part, M.P. drew a line on the girl's lower abdomen between her genitals and belly button, approximately one quarter of the distance above her genitals. Also, B.G. testified when M.P. made her outcry, M.P. told her Pinales's "private part touched [M.P.'s] stomach." The Oxford English dictionary defines the "torso" as "[t]he trunk of a statue, without or considered independently of head and limbs; also, the trunk of the human body." See XVIII Oxford English Dictionary 275 (2d ed. 1989). Similarly, Webster's New International Dictionary defines a "torso" as "the human trunk." See Webster's Third New International Dictionary 2413 (1981). M.P.'s testimony, the exhibit on which M.P. drew a line showing where Pinales's "private part" touched M.P., and B.G.'s testimony are legally sufficient to show Pinales touched M.P.'s torso with his genitals. Viewing the evidence in a neutral light, we conclude there is sufficient evidence to prove the precise sexual contact alleged in the indictment. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust. Nor do the great weight and preponderance of the evidence contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to prove the precise sexual contact alleged in the indictment. Issues one and two are decided against Pinales.

III. EXCLUSION OF EXPERT TESTIMONY

In issue three, Pinales argues the trial court erred when it excluded the testimony of his expert witness who was going to testify as to the reliability of child-victim testimony. He argues Yesenia Gonzalez, a forensic interviewer, testified without objection that nothing in her interview of M.P. caused her any concern, which opened the door regarding M.P.'s credibility. As a result, Pinales claims he proffered the testimony of Dr. William Flynn, a psychologist, who would testify it was not possible to say whether M.P. had been coached, which would have directly contradicted Gonzalez's testimony. The State responds that Dr. Flynn's proffered testimony involved general principles, which were not connected to specific facts, used "statement validity analysis," which is generally not accepted in the United States, and admitted he was in no position to evaluate the accuracy of M.P.'s statements or her memory.

A. Standard of Review

An appellate court reviews a trial court's decision to admit or exclude scientific expert testimony for an abuse of discretion. See Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App. 2002). If the trial court's ruling is within the zone of reasonable disagreement, then the trial court's ruling will be upheld. See id.

B. Applicable Law

Texas Rule of Evidence 702 states:

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. Evid. 702; see Sexton, 93 S.W.3d at 99. However, expert testimony must aid, not supplant, the jury's decision. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997). In Texas, the jury is the exclusive judge of the credibility of the witnesses and the weight to give their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). It is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111. The jury is free to accept or reject any part of a witness's testimony. Reyes v. State, No. 04-07-00203-CR, 2008 WL 3055514, *6 (Tex.App.-San Antonio Aug. 6, 2008, no pet.). Because jurors must decide the credibility of the witnesses, expert opinions on the truthfulness of a child complainant's allegation or a class of persons the complainant belongs to, are prohibited. See Schutz, 957 S.W.2d at 59; Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App. 1993); see also Reyes, 2008 WL 3055514 at *4; Lane v. State, 257 S.W.3d 22, 27 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). An expert may testify that the witness exhibits symptoms consistent with sexual abuse, but not that the witness is truthful. See Cohn v. State, 849 S.W.2d 817, 818-19 (Tex.Crim.App. 1993); Reyes, 2008 WL 3055514 at *4. Also, a trial court may admit expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused. See Reyes, 2008 WL 3055514 at *4. Further, testimony that in an expert witness's opinion, the child does not exhibit indications of coaching does not constitute an opinion on the child's ultimate truthfulness. See Reynolds v. State, 227 S.W.3d 355, 365 (Tex.App.-Texarkana 2007, no pet.); see also Schutz, 957 S.W.2d at 73.

C. Application of the Law to the Facts

Outside the presence of the jury, the trial court held a hearing on the admissibility of Pinales's expert witness, Dr. William Flynn, a psychologist. Dr. Flynn stated he was familiar with the literature and research concerning child memory, which focuses on two factors, the vividness of the details and the spontaneity of the child's statement. He stated these two factors generated the "statement validity analysis" which is a fourteen-item checklist used to discern between "children who have actually experienced an event versus those children who didn't experience that event." Dr. Flynn admitted "statement validity analysis" it is not a generally accepted analysis or field in the United States, and "[b]ecause of the error rate of false positives and false negatives, most courts accept testimony on statement validity analysis but less than half do not." Dr. Flynn stated research and his own experience shows when a child provides multiple outcries, like M.P., "it is nearly impossible to tell the difference between witnesses who have actually experienced something versus witnesses who have not experienced the event they're reporting on." Also, Dr. Flynn stated he reviewed the therapy reports, the arrest report, prosecution reports, Child Protective Services Reports, and indictment, focusing on the interviews of M.P. When the State asked Dr. Flynn what he intended to state as his ultimate opinion, Dr. Flynn answered "That at this stage of the outcry that it will be very difficult for jurors to evaluate credibility or reliability because there have been too many times this child has been interviewed." He also stated it was his opinion that it was not possible to tell whether M.P. is a credible person, "her scores were right in the middle," and he "can neither verify that she is an accurate, honest person, nor can [he] verify that she's a liar or has been coached and actually believes it." The State objected to Dr. Flynn's testimony on the basis that: (1) it invaded the province of the jury, which is the fact-finder and determines whether a witness is credible; (2) he based his opinions and reports on matters that are not admissible at trial, specifically he is trying to impeach M.P.'s credibility on a videotape that was not admitted into evidence; and (3) it is not relevant. Pinales responded that the jury had already heard the testimony of several witnesses regarding forensic interviews. The trial court sustained the State's objection. Dr. Flynn's testimony directly addressed M.P.'s credibility and truthfulness. An expert opinion on the truthfulness of a child complainant's allegation is prohibited. See Schutz, 957 S.W.2d at 59; Yount, 872 S.W.2d at 708. Pinales argues Gonzalez's testimony that she did not think M.P. had been coached or compelled to make the allegations opened the door regarding M.P.'s credibility because the only significance of that testimony was to let the jury know the forensic interviewer thought M.P. was being truthful. Gonzalez explained the signs that would indicate a child may have been coached or made to say things. The State asked "Is there anything about that interview that brought any concerns to you?" and Gonzalez answered "No." Gonzalez's testimony to the effect that in her opinion, M.P. did not exhibit indications of coaching does not constitute an opinion on M.P.'s truthfulness or credibility. See Reynolds, 227 S.W.3d at 365; see also Schutz, 957 S.W.2d at 73. As a result, the State did not open the door for Dr. Flynn's testimony as to M.P.'s credibility. We conclude the trial court did not abuse its discretion when it sustained the State's objection and excluded Dr. Flynn's testimony. Issue three is decided against Pinales.

IV. CONCLUSION

The evidence is legally and factually sufficient to prove the precise sexual contact alleged in the indictment. Also, the trial court did not abuse its discretion when it sustained the State's objection and excluded Dr. Flynn's testimony. The trial court's judgment is affirmed.