Taylor v. State

Full title: CHARLES ROBBINS TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Sep 23, 2004

No. 01-03-01017-CR (Tex. App. Sep. 23, 2004)

Opinion

No. 01-03-01017-CR

Opinion issued September 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 42,166.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

In a single proceeding, a jury found appellant, Charles Robbins Taylor, guilty of two separate offenses of indecency with a child by engaging in sexual conduct¹ and of the offense of indecency with a child by exposing appellant's genitals.² The trial court assessed punishment at confinement for 10 years, suspended the imposition of the sentence, placed appellant on community supervision for seven years, and fined him $3,000. In two points of error, appellant contends that the trial court erred in admitting unqualified expert testimony and in excluding evidence concerning (1) "the property division and events surrounding the divorce" between appellant and the complainant's mother, (2) the control and influence the complainant's mother had over the complainant, and (3) the threats that the complainant's mother allegedly made to appellant and to others regarding the property division. We affirm.

1 Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003).

2 Id. § 21.11(a)(2)(A) (Vernon 2003).

Facts

The complainant, appellant's step-daughter, testified that, during the summer of 1992 when she was thirteen or fourteen years old, appellant approached her in her bedroom while she was sitting on the floor playing a board game. Appellant, wearing very short shorts and no underwear, then sat down on the floor across from the complainant, exposing his penis and testicles to her. After this incident, appellant began entering the complainant's bedroom at night. Appellant would sit beside the complainant on her bed, kiss her on the mouth, and fondle her breasts and buttocks. When the complainant would ask appellant to stop, appellant would respond that he was not doing anything wrong. The complainant began locking her bedroom door at night to prevent appellant from entering her bedroom. However, the complainant's mother subsequently insisted that the complainant leave her door unlocked for safety reasons. Thereafter, appellant continued to enter the complainant's bedroom at night, and his visits lasted throughout the complainant's high school years. In August 2000, the complainant contacted Lake Jackson Police Sergeant B. Richards and told him that appellant had sexually abused her for a number of years. Richards told the complainant that she needed to come to the Lake Jackson police station and to give a statement. The complainant subsequently gave a statement, but decided not to sign it. The complainant also decided not to file a complaint against appellant because she was concerned about the effect that it would have on her family and about her name appearing in the newspaper. However, in the fall of 2001, after attending therapy for several months, the complainant decided to sign the statement and to initiate a criminal complaint against appellant. Tanja Smith, the complainant's mother, testified that, on July 8, 2000, she tape-recorded a conversation between herself and appellant, during which appellant admitted that he had exposed himself to the complainant. Appellant also admitted that on numerous occasions, while "tuck[ing]" the complainant in at night, he had touched her breasts and buttocks and had become sexually aroused. The State subsequently introduced the tape into evidence at trial. Sergeant Richards testified that, on November 21, 2001, he interviewed appellant at the Lack Jackson police station. During this interview, appellant admitted that he had exposed himself to the complainant, had kissed her on the mouth, and had inappropriately touched her breasts and buttocks. When Richards asked appellant to sign a written statement acknowledging these admissions, appellant refused and stated that he wanted to speak with his attorney. Appellant testified that he had never touched the complainant inappropriately. Appellant admitted, however, that he had exposed himself to the complainant on one occasion, but he testified that it was an accident. In regard to his admissions on the tape recording introduced into evidence by the State, appellant explained that he made the statements in an effort to tell the complainant's mother "anything she wanted to hear" because he thought that it would improve his chances of getting back together with her.

Expert Testimony

In his first point of error, appellant contends that the trial court erred in admitting unqualified expert testimony offered by the State. Texas Rule of Evidence 702 provides that, 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. We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App. 1992). As part of its case in chief, the State called Dr. Belinda Skloss, a psychotherapist who had been treating the complainant, to testify. Thereafter, appellant requested a hearing, outside the jury's presence, to determine whether Dr. Skloss was qualified to testify as an expert. The trial court subsequently ruled that Dr. Skloss was not qualified to testify as an expert, but that the State could have her testify as a fact witness. After the jury returned to the courtroom, Dr. Skloss testified that she had treated numerous children who had been sexually abused and that these children commonly had exhibited the following characteristics: low self-esteem, poor impulse control skills, eating disorders, nightmares, high blood pressure, and ulcers. When asked about characteristics that she had observed in the complainant, Dr. Skloss testified, over appellant's objection, that the complainant exhibited low self-esteem and poor impulse control skills. Thereafter, the trial court conducted another hearing outside the jury's presence, and it then ruled as follows:

All right. I will agree with [appellant] that [Dr. Skloss'] diagnos[i]s is not relevant. What I will allow is — and the only thing that I will allow — is that she is being treated at this time for allegations of sexual abuse, period. That's it. Because I don't think her diagnosis, in 2001, or her diagnosis now is relevant.

After the jury returned to the courtroom, the trial court gave the following instruction:

Let me give you one, first of all, one instruction. And that instruction is as follows: Any testimony from [Dr. Skloss] regarding whether [the complainant] in this case . . . was actually sexually abused, I am instructing you to disregard. Also, I am instructing you to disregard any diagnosis of [Dr. Skloss] at this time.

Appellant argues that the trial court erred in allowing Dr. Skloss to testify that she had observed that the complainant had low self-esteem and poor impulse control skills and that these are characteristics commonly exhibited by sexually abused children. Appellant asserts that "[t]his testimony fails to meet the three requirements for expert testimony under [Texas Rule of Evidence] 702." Appellant also asserts that the trial court "contradicted its own ruling" by allowing Dr. Skloss to give expert testimony after determining that she was not qualified to do so. It is true that the trial court concluded that Dr. Skloss was not qualified to give expert testimony. It is also true that Dr. Skloss testified that the complainant exhibited low self-esteem and poor impulse control skills and that sexually abused children commonly exhibit such characteristics. However, the trial court subsequently instructed the jury to disregard any testimony from Dr. Skloss concerning her "diagnosis" of the complainant. This instruction included Dr. Skloss' testimony that she had observed that the complainant had low self-esteem and poor impulse control skills and that these are characteristics common to sexually abused children. In the absence of evidence to the contrary, we must presume that a jury followed a trial court's instruction to disregard. Westbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000). Here, appellant has presented no evidence to indicate otherwise. Accordingly, we overrule appellant's first point of error.

Evidence Concerning Divorce

In his second point of error, appellant contends that the trial court erred in excluding evidence concerning (1) "the property division and events surrounding the divorce" between appellant and Tanja Smith (Smith), the complainant's mother; (2) the control and influence Smith had over the complainant; and (3) the threats that Smith allegedly made to appellant and to others regarding the property division. An appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h). Regarding the exclusion of property division evidence, in his brief, appellant contends only that he preserved error, made timely offers of proof, and was harmed. However, appellant does not explain in his brief how the trial court erred in excluding such evidence. Furthermore, appellant provides no legal authority in support of his contention that the trial court erred. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex.Crim.App. 1995). It is not the appellate court's "task to speculate as to the nature of an appellant's legal theory." Id. The right to appellate review extends only to complaints made in accordance with the rules of appellate procedure. Id. (citing Foster v. State, 779 S.W.2d 845, 864 (Tex.Crim.App. 1989)). Thus, regarding appellant's contention that the trial court erred in excluding evidence concerning "the property division and events surrounding the divorce," we hold that appellant has not presented any error for our review. Secondly, regarding appellant's contention that he was prevented from presenting evidence regarding Smith's control over the complainant, in his brief, appellant again provides no specific references to the record where such evidence was offered and excluded. Failing to direct a reviewing court to the locations in the record where the trial court has committed error presents nothing for review. Id. (citing Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992)). An appellate court has no duty to "pore through hundreds of pages of record in an attempt to verify an appellant's claims." Id. Moreover, our review of the record contradicts appellant's contention that the trial court prevented him from presenting such evidence. The trial court permitted appellant to question the complainant, Smith, and Charles Taylor Jr., appellant's son, about the relationship between the complainant and Smith. Thus, we hold that, regarding appellant's contention that the trial court erred in excluding evidence concerning the control and influence Smith had over the complainant, appellant has not presented any error for our review. Finally, appellant does not demonstrate how the trial court prevented him from presenting evidence regarding threats that Smith allegedly made to appellant regarding the property division. When a trial court erroneously admits or excludes evidence, any non-constitutional error that does not affect substantial rights must be disregarded. High v. State, 998 S.W.2d 642, 644 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); see Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Here, it is not clear from the record whether the trial court, in fact, excluded evidence concerning the threats Smith allegedly made to appellant when it sustained the State's objection to evidence concerning the property division. However, to the extent that the trial court excluded such evidence, the trial court did so because it expressly determined that the threats were not relevant to the matters the jury was to determine. Subsequently, the trial court permitted appellant to question both Smith and Rudy Taylor, appellant's father, about whether Smith had ever threatened appellant with the contents of the July 8, 2000 tape. Where evidence alleged to have been erroneously excluded is later admitted through another source, any error in excluding it is harmless. See Railsback v. State, 95 S.W.3d 473, 480 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Thus, we hold that, assuming the trial court erred in initially excluding evidence of the threats that Smith had allegedly made to appellant and to others regarding the property division, appellant has not shown how he was harmed by such error. See Tex.R.App.P. 44.2. Accordingly, we overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.