Opinion
No. 05-13-00088-CR No. 05-13-00089-CR
2013-10-21
EDUARDO ENRIQUE ALFARO, Appellant v. THE STATE OF TEXAS, Appellee
GREG WILLIS Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division ADAM A. BIGGS Assistant Criminal District Attorney Crystal Levonius Assistant Criminal District Attorney
Appealed from Cause Numbers 401-82025-11 and 401-82026-2011 in the 401st District Court, Collin County, Texas, the Honorable James Fry, Sitting by Assignment.
§ § §
State's Brief
§ § §
Oral argument requested
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
ADAM A. BIGGS
Assistant Criminal District Attorney
Crystal Levonius
Assistant Criminal District Attorney
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................ i INDEX OF AUTHORITIES.................................................................................... iii STATEMENT OF THE CASE..................................................................................1 STATEMENT REGARDING ORAL ARGUMENT...............................................2 STATEMENT OF FACTS ........................................................................................ 2 SUMMARY OF THE STATE'S ARGUMENTS.....................................................3 STATE'S RESPONSE TO APPELLANT'S FIRST ISSUE (Lisa Martinez's Testimony).................................................................................3
STATE'S RESPONSE TO APPELLANT'S SECOND ISSUE (Dr. Lang's Testimony)......................................................................................12Appellant complains the testimony of Lisa Martinez was improper bolstering of the victim's testimony. However, Appellant failed to make a timely objection to this testimony. As a result, no issue is properly before the Court. Nonetheless, if the Court finds the error was preserved, the testimony was not improper because it did not directly speak to the truthfulness of the victim or a class of people. Further, the testimony was offered after the victim's credibility was attacked. And in any even, Martinez's testimony did not harm Appellant.Standard of Review...............................................................................................4
Argument & Authorities.......................................................................................4
Appellant Failed to Proberly Preserve His First Appellate Complaint...........4
Martinez's Testimony Did Not Indicate a Certain Class Was Truthful..........7
Appellant Was Not Harmed by Martinez's Testimony.................................10
Appellant complains the testimony about a physical exam of the victim was bolstering. This point of error is not properly before the Court becausePRAYER ..................................................................................................................20 CERTIFICATE OF SERVICE ................................................................................20 CERTIFICATE OF COMPLAINCE .......................................................................21
the objection was sustained on hearsay grounds and Appellant never secured an adverse ruling. Regardless, if the Court finds the error was preserved, the question did not constitute bolstering because no opinion was offered based solely upon the sexual history of the victim.
Appellant Failed to Properly Preserve His Second Appellate Complaint.....12
The Testimony of Dr. Lang Was Not Bolstering..........................................15
Dr. Lang's Testimony Was Harmless Error..................................................18
INDEX OF AUTHORITIES
Statutes, Codes, and Rules
TEX. R. APP. P. 9.4(i)(1)...........................................................................................21 TEX. R. APP. P. 9.4(i)(2)...........................................................................................21 TEX. R. APP. P. 39.1 (c).............................................................................................2 TEX. R. APP. P. 39.1 (d).............................................................................................2 TEX. R. APP. P. 33.1...................................................................................................4 TEX. R. APP. P. 44(b).........................................................................................10, 18 TEX. R. APP. P. 44.2(b)......................................................................................10, 18
Cases
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007)...................................................... 10, 18 Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993).........................................................9, 10 Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995)...........................................................4, 7 Girndt v. State, 623 S.W.2d 930 (Tex. Crim. App. 1981)......................................................5, 6, 7 Grant v. State, 345 S.W.3d 509 (Tex. App.—Waco 2011, pet. ref'd)............................................5 Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998)...................................................... 12, 14 Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996).............................................................12 Montgomery v. State, 810 S.W.2d 372(Tex. Crim. App. 1990) (op. on reh'g...........................................4 Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009)...............................................................4 Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008)...............................................................4 Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth 2005, pet. ref'd)..........................15, 16 Sledge v. State, 686 S.W.2d 127 (Tex. Crim. App. 1984).............................................................10 Wilson v. State, 90 S.W.3d 391 (Tex. App.—Dallas 2002, no pet.)............................................8, 9 Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007)...............................................................4 Yount v. State, 872 S.W.2d at 707...................................................................................................8
Other Authorities
Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n. 11.1 (Supp. 1998)................................................................................12
STATEMENT OF THE CASE
After a jury trial, Appellant was convicted, in two separate causes, and punishment was assessed as follows:
| 401-82025-2011 | ||
| Count: | Offense | Punishment |
| I | Continuous Sexual Abuse of a Young Child 50 Years' Confinement | |
| II | Aggravated Sexual Assault of a Child | 40 Years' Confinement |
| III | Aggravated Sexual Assault of a Child | 40 Years' Confinement |
| IV | Aggravated Sexual Assault of a Child | 40 Years' Confinement |
| V | Aggravated Sexual Assault of a Child | 40 Years' Confinement |
| VI | Aggravated Sexual Assault of a Child | 40 Years' Confinement |
| 401-82026-2011 | ||
| I | Sexual Assault of a Child | 40 Years' Confinement |
| II | Sexual Assault of a Child | 40 Years' Confinement |
| III | Sexual Assault of a Child | 40 Years' Confinement |
| IV | Sexual Assault of a Child | 40 Years' Confinement |
| V | Indecency with a Child | 20 Years' Confinement |
| VI | Indecency with a Child | 20 Years' Confinement |
1 CR 140; 1 CR 143; 2 CR 108; 2 CR 111.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requested oral argument, and the State has requested oral argument in order to preserve its right to respond. However, the State believes the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. See Tex. R. App. P. 39.1 (c), (d).
STATEMENT OF FACTS
Around 2003, I.L., a ten-year old girl, was taking a shower when Appellant walked in and started kissing her. 3 RR 158. He then asked if she had ever been kissed while having her clitoris rubbed. 3 RR 158. This incident began years of continuous sexual abuse. The abuse included rubbing her clitoris with his hand and a vibrator; making her perform oral sex while photographing the act; performing oral sex upon I.L.; and attempting to penetrate I.L. both vaginally and anally with his penis. 3 RR 164, 171, 172, 184. At one point, Appellant was brazen enough to force I.L. to fondle his penis in a closet with her mother just feet away. 3 RR 174.
Eventually, I.L. made an outcry to a friend. 3 RR 188. After an investigation, Appellant was arrested and charged by two multi-count indictments. 3 RR 105, 70, 25-29. He pleaded not guilty and proceeded to trial. 3 RR 22.
At trial, the State called I.L. who recounted the years of sexual abuse by Appellant. I.L. was cross-examined thoroughly by Appellant—her credibility was attacked throughout the proceeding. 4 RR 25. In addition to I.L., the State called Lisa Martinez from the Child Advocacy Center and Dr. Kathleen Lang. 4 RR 105; 4 RR 6. Martinez testified about the forensic interview process utilized to interview victims and explained general characteristics associated with victims. 4 RR 105. Dr. Lang testified generally about SANE exams. 4 RR 25. However, before Dr. Lang was able to explain the results of I.L.'s exam or render a diagnosis a discovery issue arose. 4 RR 24. As a result, the State ended Dr. Lang's testimony and never recalled her. At the close of trial, Appellant was found guilty on all counts. 5 RR 42.
SUMMARY OF THE STATE'S ARGUMENTS
Appellant did not properly preserve either claim. Further, the testimony of Lisa Martinez and Dr. Lang did not constitute improper bolstering.
STATE'S RESPONSE TO APPELLANT'S FIRST ISSUE
(Lisa Martinez's Testimony)
Appellant complains the testimony of Lisa Martinez was improper bolstering of the victim's testimony. However, Appellant failed to make a timely objection to this testimony. As a result, no issue is properly before the Court. Nonetheless, if the Court finds the error was preserved, the testimony was not improper because it did not directly speak to the truthfulness of the victim or a class of people. Further, the testimony was offered after the victim's credibility was attacked. And in any event, Martinez's testimony did not harm Appellant. Standard of Review
An abuse of discretion standard is utilized when examining a trial court's evidentiary ruling. "In other words, as long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld." Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). Argument & Authorities
Appellant Failed to Properly Preserve His First Appellate Complaint
Appellant's first issue is not properly before the Court because he failed to lodge a timely objection because he waited until the next question was asked and answered to object. 4 RR 111-12. In order to preserve an issue for appellate review, "complaints must be made in the 'trial court by a timely request, objection, or motion . . . Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) (noting "preservation of error is a systemic requirement of every appeal"); see also TEX. R. APP. PROC. 33.1. An objection is timely if it is made as soon as the grounds for the objection become apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). "If a party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived." Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); see also Girndt v. State, 623 S.W.2d 930, 934-35 (Tex. Crim. App. 1981); Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd).
Appellant's trial objection and brief specifically took umbrage with the statement by Lisa Martinez that "[e]specially in Hispanic households, you know, we are taught you listen to your parent no matter what." Appellant's Brief at p. 6; 4 RR 111. However, when the statement is viewed in context it becomes clear that the objection was untimely.
Ms. Martinez's testimony was as follows:
State: I want to talk to you about a number of things that you talked about. You said that sometimes you feel guiltier and guiltier because you didn't tell. Why is that?4 RR 110-12 (emphasis added).
Martinez: Well, at first sometimes kids don't realize - if they're pretty young kids they don't realize what they did was wrong, or they don't real [sic] what the perpetrator was doing is wrong. It's just something
Defense Counsel: Your Honor, I'm going to have to object to speculation. She doesn't know what kids realize.
State: I think she does.
The Court: Yeah, overruled, counsel.
Martinez: So sometimes they just don't realize what they do is wrong because they're so young. And when you have a parent figure doing something that's not okay to them, it kind of skews their view because they don't know what's right and what's wrong.
What you learn as an adult of what's normal and what's not normal is a lot of times what you learn as a parent. Especially in Hispanic households, you know, we are taught you listen to your parent no matter what. You listen to adults. You respect adults. What they say goes.
So if this adult is doing these things to you that feel kind of weird or you don't know, you know, head or tails about it, a lot of the times they're not going to tell right away. After that when you realize that they're not telling either or that it might be wrong or something, it gets kind of harder and harder to tell as time goes on, because you should have told at the beginning and then you start feeling more of the shame and the guilt and that it's your fault.
State: In your experience with the interviews that you've conducted, do you find that it's harder for children who waited, who didn't tell right away?
Martinez: Yes.
Defense Counsel: Objection.
I'd like to object under Rule 702. We're talking about classes of people. In 1500 people she's interviewed children will sometimes do this. Under Rule 702 there's case law that says that that kind of testimony will not assist the trier of fact to come up with a solution, and it's excludable under Rule 702 and we would object to that, Judge. Anything talking about classes of people or generalities where she's actually testifying that ultimately are going to make more specific testimony.
In this instance, Appellant delayed a substantial amount of time to object to the specific statement cited in his brief. As in Dinkins and Girndt, Appellant waited until the next question was asked and answered before he objected. See Girndt, 623 S.W.2d at 933-34 (holding that absent a showing of misunderstanding by defense counsel an objection that is lodged after the next question is asked does not preserve an issue for appellate review); Dinkins, 894 S.W.2d at 354-55 (holding when a complained of question was answered without objection nothing is preserved for appellate review).
However, the facts at hand are stronger than those in both Diknins and Girndt because of the length of Ms. Martinez's answer. In Dinkins and Girndt, the complained of questions were one sentence long and the answers were one sentence. Dinkins, at 354-55; Girndt, at 933. In this case, the question was three sentences long and the answer was eight sentences. The complained of statement was followed by five full sentences, including a different question and answer, before the objection. Thus, Appellant's counsel had abundant time to recognize his claim and formulate an objection before the next question was asked and answered. As a result, Appellant's first issue is not properly before the Court because he waited a substantial amount of time after the statement, including until after the next question was asked and answered, to object and there is no showing of misunderstanding. Appellant's first issue should be summarily overruled.
Martinez's Testimony Did Not Indicate a Certain Class Was Truthful
Even if the Court finds that Appellant's first issue was preserved, the testimony was nonetheless not an impermissible comment on the truthfulness of a class of victims because it was a general explanation of the dynamics a victim may experience. Appellant complains "Martinez was implicitly testifying that the delayed outcry was, despite its delay, truthful," because "Hispanic children would naturally be submissive to a parental figure." Appellant's Brief at p. 9. Appellant relies on Yount v. State, 235 S.W.3d 787 (Tex. Crim. App. 1993) and Wilson v. State, 90 S.W.3d 391 (Tex. App.—Dallas 2002, no pet.) to support his argument. However, the facts at hand are distinguishable from both cases.
In Yount, the State attempted to elicit the following testimony from its expert:
Q: You testified you've interviewed and examined hundreds of children that have claimed of either being fondled or penetrated either with penis, foreign object or with a finger; it (sic) that correct?Yount, 872 S.W.2d at 707-08. In Wilson, the State elicited the following testimony from its expert:
A: That's correct.
Q: Okay. Of those hundreds that you've examined, how many have you found to be unfounded?
A: I'm sorry. When you mean invalid, that the child was not telling the truth?
Defense Counsel: I'm going to object to this.
. . .
The Court: Objection overruled.
A: I have seen very few cases where the child was actually not telling the truth.
Q: Ms. Alexander, you are familiar with research concerning cases involving false allegations; is that correct?Wilson, 90 S.W.3d at 393. In both cases, the court held the expert's opinion abrogated the role of the jury by telling them that almost all victims of sexual abuse are truthful.
A: Yes, I am.
. . .
Q: And what is the percentage, based on the research, of the percentage of false allegations compared to all cases reported?
A: 2 to 8 percent.
The facts at hand are distinguishable from these cases because Martinez was providing testimony to explain the behaviors associated with being sexually abused. In Yount and Wilson, the experts testified that child victims as a class do not generally fabricate allegations of abuse. Martinez's testimony, about the dynamics of a Hispanic household, falls far short of assigning unblemished credibility to all victims of Hispanic heritage. The testimony was more akin to a permissible explanation of the behavior exhibited by a victim. See Cohn v. State, 849 S.W.2d 817, 818-821 (Tex. Crim. App. 1993).
Nonetheless, if the Court does find that the comment about Hispanic households did speak to the truthfulness of I.L., the testimony was proper rehabilitative evidence after I.L.'s credibility was attacked on cross-examination. Appellant only cites cases pertaining to the bolstering of a witness who has not been impeached. However, Martinez testified after I.L. was cross-examined. See 4 RR 25-100. During cross-examination, Appellant attacked the credibility of I.L. The crux of Appellant's questions was that I.L. had fabricated the allegations out of jealousy, anger towards Appellant, and to obtain a visa. 4 RR 49-50. As a result, any attempt to rehabilitate I.L. would be permissible because her credibility had been attacked on cross-examination. See Cohn, 849 S.W.2d at 819 (citing Sledge v. State, 686 S.W.2d 127, 129 (Tex. Crim. App. 1984)). As a result, Ms. Martinez's testimony was not impermissible because it did not assign credibility to a particular class and occurred after I.L.'s credibility was attacked.
"Appellant implores the court (sic) to acknowledge that this sort of racist generalization has no place whatsoever in a court of law." But, it was Appellant who first broached the subject of racial generalizations during cross-examination. Appellant asked "[Appellant], you know, traditional Hispanic father, traditional Hispanic male. It's safe to say that he was strict." 4 RR 33.
Appellant Was Not Harmed by Martinez's Testimony
Finally, any error was harmless because it did not affect Appellant's substantial rights. Under Rule of Appellate Procedure 44.2(b), an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." TEX. R. APP. P. 44(b); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).
When viewing the record as a whole Martinez's statement about the dynamics of a Hispanic household were harmless. Appellant argues that implicit in the statement is that I.L. is credible. Appellant's Brief at p. 9. Appellant's own argument demonstrates that no direct assertion was made about I.L.'s truthfulness. Further, the statement was one sentence embedded within a large passage of testimony. Nothing about the statement or when it was elicited leads a reasonable person to believe the jury would attach any significance to it. In addition, the State did not mention or emphasize that specific statement throughout the remainder of trial. See 5 RR 25-36.
Appellant claims I.L.'s credibility was paramount. He claimed "Martinez testified that the complainant's delayed outcry could be believed because she was a Hispanic child." However, even if the testimony was as Appellant claims, it would be extremely unlikely that the jury would believe I.L. simply because of her race. Instead, the jury likely believed the substantial amount of corroborative evidence that was elicited. For instance, I.L's testimony did not vary from her account of the events at the forensic interview. 4 RR 143-44. Also, her testimony was corroborated by the physical evidence found by police at the scene. I.L. testified Appellant took Polaroid photos of her performing oral sex. 3 RR 182. At the home, a Polaroid camera was found. 3 RR 89. I.L. also described in great detail Appellant penetrating her with a vibrator. 3 RR 164-65; 168. The vibrator was found in the exact place described by I.L. 3 RR 92. Viewed as a whole, it appears unlikely that the jury would have given I.L. enhanced credibility based upon innocuous statement. Instead, the jury looked at the voluminous amount of corroborating evidence and assessed credibility. As a result, any error associated with Martinez's statement was harmless. Appellant's first issue should be overruled.
This evidence lent credence to her testimony because a good amount of family photos were introduced by Appellant. However, none of them were taken with a Polaroid camera. This evidence allowed the jury to draw the inference that this camera was specifically for photographing sexual abuse.
STATE'S RESPONSE TO APPELLANT'S SECOND ISSUE
(Dr. Lang's Testimony)
Appellant complains the testimony about a physical exam of the victim was bolstering. This point of error is not properly before the Court because the objection was sustained on hearsay grounds and Appellant never secured an adverse ruling. Regardless, if the Court finds the error was preserved, the question did not constitute bolstering because no opinion was offered based solely upon the sexual history of the victim.
Appellant Failed to Properly Preserve His Second Appellate Complaint
Appellant's second issue is not properly before the Court because he failed to object to the complained of evidence when it was introduced after his initial objection. "When a court has overruled an objection to evidence, the ruling usually will not be reversible error when the same evidence is subsequently admitted without objection." Leday v. State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998)(citing Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996)). The "futility rule" requires that after a trial court overrules an objection the objecting party "must keep making futile objections on pain of waiver." Id.; 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n. 11.1 (Supp. 1998) (citing Texas cases).
Appellant complains about the following testimony of Dr. Lang:
State: Was a verbal history taken of I.L.?4 RR 14-16.
Dr. Lang: There was.
State: Was she able to describe who assaulted her?
Dr. Lang: Yes, she was.
State: If you would, could you tell me what her verbal history was?
Dr. Lang: She stated that. . .
Defense Counsel: Objection, Your Honor, hearsay.
The Court: Sustained, counsel.
Dr. Lang: She stated that it was the. . .
Defense Counsel: Objection.
The Court: Approach, counsel.
(At the Bench, on the record)
The Court: I've even got us a mike over here today. Here's why I sustained the objection. The case law indicates you're not entitled to general reading of the case history but you can -- she's allowed to tell you the case history necessary to show what her exam showed that's connected to that.
The State: Okay.
Defense Counsel: Judge, may I ask a question on that?
The Court: Yes, sir.
Defense Counsel: Any question that would get her to elicit some kind of a hearsay statement against [Appellant], I don't know if that statement necessarily gets out of a hearsay objection for
purposes of medical diagnosis, because you're not trying to make a medical diagnosis as far as anything she may be complaining about. She's just there to see if - to do an examination to see if there's evidence of sexual -
The Court: Yeah, but what I'm saying is if she has findings, then she's allowed to indicate what parts of the verbal history coincide with that finding.
Defense Counsel: That's fair enough.
Defense Counsel Two: It does bolster the testimony of the complaining witness though. It's bolstering.
The Court: Well, I'll overrule that one. I mean, the case law I think is pretty clear of what you can and can't do. You can't just generally get up and have her read it, okay.
(Bench conference concluded)
State: Dr. Lang, based on the verbal history, were there parts of I. L. that needed to be checked?
Dr. Lang: Yes.
State: What parts needed to be checked?
Dr. Lang: She would require a full exam where we would basically make sure there was (sic) no sores in her mouth or anything of that sort in addition to the normal exam and also we'll check her genital area.
Appellant's complaint specifically dealt with the testing that was ordered on I.L. based upon the history. Appellant's Brief at p. 13. Once the trial court overruled the objection, the evidence of the testing elicited via multiple questions to Dr. Lang. 4 RR 16. Under the "futility rule", in order to preserve the point Appellant had an obligation to object when the evidence was elicited "on pain of waiver." See Leday, 983 S.W.2d at 718-19. However, Appellant failed to do so. As a result, Appellant's second issue is not properly before the Court because he failed to object as each piece of evidence was admitted. Appellant's second issue should be summarily overruled.
The Testimony of Dr. Lang Was Not Bolstering
Nonetheless, if the Court finds the second issue was preserved, the testimony of Dr. Lang was not bolstering because she did not give an opinion or diagnosis based solely on I.L's self-reported history. Appellant complains that "Dr. Lang's testimony that she felt additional testing was necessary based on [I.L.'s] sexual history was improper bolstering." Appellant's Brief at p. 13. To support his claim, Appellant points to Salinas v. State, 166 S.W.3d 368, 371 (Tex. App.—Fort Worth 2005, pet. ref'd). However, Salinas is factually distinguishable from the facts at hand.
In Salinas, the State called Dr. Coffman to provide expert testimony about the sexual abuse of a six-year-old victim. Salinas, 166 S.W.3d at 370. The victim had alleged that her cousin had digitally penetrated her anus. Id. Four-and-one-half-months after the assault, Dr. Coffman gathered a history of the abuse from the victim and conducted a physical exam based upon that history. Id. Dr. Coffman found no signs of physical trauma, which she explained was consistent with digital penetration of the anus. Id. Over objection, Dr. Coffman testified:
Q: Did you conduct a physical exam of her after that history was taken?Id. at 370-71.
A: Yes.
Q: And were there any physical findings?
A: No, there were not. She had a normal exam.
. . .
Q: Did you make a diagnosis in this case?
A: Yes.
Q: And what was that diagnosis?
A: The diagnosis is sexual abuse, and that was based on her history and that she had an exam which was consistent with that history.
. . .
Q: And is diagnosis by history, is that generally accepted in your profession?
A: Yes.
The Fort Worth Court of Appeals held "the trial court had abused its discretion in admitting Dr. Coffman's testimony that she diagnosed sexual abuse based on the child's medical history." Id. at 371. The court found error in the fact that a diagnosis was rendered based solely on the self-history provided by the victim. Id. at 370. In the court's opinion, the testimony "was a direct comment on the credibility of the complaining witness." Id. at 371.
The facts at hand are distinguishable because, in contrast to the testimony in Salinas, no diagnosis was provided based solely on I.L's history; specifically, Dr. Lang did not recount the victim's statement and provided no diagnosis at all. Rather, Dr. Lang testified she collected a self-history from I.L. 4 RR 114. Dr. Lang also indicated a physical exam was performed. 4 RR 16. However, before Dr. Lang could fully explain the findings of the physical exam or provide a diagnosis a discovery issues arose.3 4 RR 19-25. At that time, the State ended Dr. Lang's testimony and never recalled her during trial—no diagnosis was made or opinion rendered. 4 RR 24. In direct contrast to Dr. Coffman's diagnosis based solely on the victim's self-history in Salinas, Dr. Lang did not give any diagnosis or opinion about I.L.'s sexual abuse. As a result, the testimony that concerned the Salinas court was not at issue in the case at hand; hence, Dr. Lang's testimony was not a direct comment on the truthfulness of I.L.
The discovery dispute was over the fact that Appellant never received a copy of the pictures of the trauma inside I.L.'s vagina. He claimed Dr. Lang should not be allowed to give her opinion based upon those pictures because Appellant had never seen them or had the ability to consult his own expert. 4 RR 19-24.
Further, Appellant claims "implicit in Dr. Lang's testimony is that Dr. Lang believed [I.L.'s] story; otherwise, of course, she would have no need to order the additional testing." Appellant's Brief at p. 13-14. However, Appellant's argument is misguided because the fact that particular tests were conducted based upon the history does not explicitly or implicitly indicate "Dr. Lang believed [I.L.'s] story." Dr. Lang explained:
[t]he purpose of getting the history is it dictates what type of testing we're going to do. For instance, if they disclose genital/anal or genital/genital contact then we will also do STD testing for HIV, syphilis, chlamydia, gonorrhea. We might also do cultures if there's anal contact. If there's oral contact, we might need to do cultures of the mouth and if there's just touching, then we won't need to do any type of testing at all and that helps the child out.4 RR 11-12.
At no point did Dr. Lang indicate that testing was predicated on whether or not she believed the victim. She simply explained that the history helps to dictate the type of testing necessary. If Appellant's argument had merit, all guided investigations based upon a victim's account of the crime would be bolstering and impermissible. This is an illogical and unrealistic conclusion. As a result, Dr. Lang's testimony was not a direct comment on I.L.'s veracity; hence, the trial court's ruling should be affirmed.
The following example demonstrates how the Appellant's implicit bolstering argument is illogical. During an assault investigation the victim, who was stabbed with a knife, tells investigators that he saw his attacker throw the knife in a lake. As a result, an investigator goes to the lake to look for the knife based upon the victim's story. Under Appellant's theory, the investigator's testimony about the search at the lake would be improper bolstering because implicit in the investigator's testimony is that he believed the victim's story; otherwise, of course, he would have no need to go to the lake. Appellant's argument would render almost all testimony about any investigation impermissible bolstering.
--------
Dr. Lang's Testimony Was Harmless Error
Finally, any error was harmless because it did not affect Appellant's substantial rights. Under Rule of Appellate Procedure 44.2(b), an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. Proc. 44(b); Casey 215 S.W.3d at 885. Appellant complains implicit in Dr. Lang's testimony is that Dr. Lang believed [I.L.'s] story; otherwise, of course, she would have no need to order the additional testing." Appellant's Brief at p. 13-14. However, the argument relies on an assumption which is not apparent from the statement. See 4 RR 14-16. It would require the jury to make the exact same slight connection between the statements and the doctor ordering more testing. This is unlikely. Further, it is unlikely the jury would recall the off handed comment because the State did not emphasize Dr. Lang's testimony during closing argument. 5 RR 8-17; 25-36. As a result, any error was harmless because viewing the record as a whole any error did not affect a substantial right.
PRAYER
Appellant's trial was without prejudicial error. The State prays that Appellant's conviction and sentence be affirmed.
Respectfully submitted,
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
_______________
Adam A. Biggs
Assistant Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, Texas 75071
(972) 548-3624
FAX (214) 491-4860
State Bar No. 24077727
abiggs@collincountytx.gov
CERTIFICATE OF SERVICE
A true copy of the State's brief has been served on counsel for Appellant, Bruce Anton and Brett Ordiway, Sorrels, Udashen & Anton, 2311 Cedar Springs Road, Suite 250, Dallas, TX 75201, on this, the 21st day of October, 2013.
____________________________
Adam A. Biggs
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on the word count of the computer program used to prepare this brief, the undersigned attorney certifies that this brief contains 4,273 words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
____________________________
Adam A. Biggs