Bronaugh v. State

Full title: TERRY ALLEN BRONAUGH, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jun 8, 2005

No. 10-03-00315-CR (Tex. App. Jun. 8, 2005)

Opinion

No. 10-03-00315-CR

Opinion delivered and filed June 8, 2005. DO NOT PUBLISH.

Appeal from the 54th District Court McLennan County, Texas, Trial Court No. 2002-1074-C. Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Terry Allen Bronaugh of three counts of aggravated sexual assault and assessed his punishment at sixty years' confinement for each count. Bronaugh contends in four issues that the court abused its discretion by: (1) admitting evidence of multiple extraneous sexual acts; (2) allowing two witnesses to testify about the complainant's character for truthfulness; (3) excluding testimony concerning the complainant's attitude about prior sexual experiences; and (4) excluding evidence that the complainant accused her mother of physically abusing her. We will affirm. Bronaugh contends in his first issue that the court abused its discretion by admitting in evidence multiple extraneous sexual acts because he did not receive adequate notice of the State's intent to offer this evidence, the evidence is irrelevant, and the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Bronaugh was charged with three counts of sexually assaulting his daughter, who was then less than fourteen years' old. The indictment alleges that Bronaugh sexually assaulted his daughter by (1) vaginal penetration with his finger, (2) contact and penetration of the vagina with his penis, and (3) contact and penetration of the vagina with his mouth. Before trial, Bronaugh filed a request for notice of any extraneous conduct which the State intended to offer under Rule of Evidence 404(b) or 609(f), article 38.37, section 3 of the Code of Criminal Procedure, or article 37.07, section 3(g). The State notified Bronaugh that it intended to offer twenty-four incidences of extraneous conduct.¹ Bronaugh then filed a motion to exclude these extraneous acts because of alleged deficiencies in the State's notice. Bronaugh also filed a pretrial motion in limine regarding the extraneous conduct alleged in the State's notice. Before opening statements, the court overruled Bronaugh's motion to exclude and heard argument on the motion in limine. After hearing argument, the court overruled the motion in limine and told Bronaugh's counsel to make his objections when the evidence was introduced. Although Bronaugh complains in his first issue about the admission of six purportedly extraneous sexual acts, he objected at trial to only the complainant's testimony that (1) Bronaugh made her sit on top of his penis while they were unclothed and (2) Bronaugh had masturbated in her presence. Therefore, we limit our analysis to these two incidences. When the State introduced the evidence in question, Bronaugh objected on the basis of relevance and Rule 403. The State responded that the evidence was admissible under article 38.37, and the court overruled Bronaugh's objections. Bronaugh did not object to lack of notice or adequacy of notice when the evidence in question was offered. Therefore, he has not preserved this aspect of his first issue for appellate review. See TEX. R. EVID. 103(a)(1); Chambers v. State, 903 S.W.2d 21, 31-32 (Tex.Crim.App. 1995); Grider v. State, 69 S.W.3d 681, 686 (Tex.App.-Texarkana 2002, no pet.); Gregory v. State, 56 S.W.3d 164, 175-76 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd, improvidently granted); see also Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003) (pretrial motion in limine does not preserve error). "An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996); Shea v. State, No. 10-03-00180-CR, 2005 Tex. App. LEXIS 3091, at *10 (Tex.App.-Waco Apr. 20, 2005, no pet. h.); Brown v. State, 6 S.W.3d 571, 575 n. 2 (Tex.App.-Tyler 1999, pet. ref'd); accord Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App. 2003). "[T]he `on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Shea, 2005 Tex. App. LEXIS 3091, at *11; accord Rodriguez, 104 S.W.3d at 91. The complainant's testimony about how Bronaugh made her sit on his penis fits within the allegations of count two of the indictment. Therefore, this does not constitute testimony regarding an extraneous offense, and the court did not abuse its discretion by overruling Bronaugh's objections to this testimony. See Rodriguez, 104 S.W.3d at 91; Sledge, 953 S.W.2d at 256; Shea, 2005 Tex. App. LEXIS 3091, at *11-12; Brown, 6 S.W.3d at 575-76. Article 38.37, section 2 provides:

Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2 (Vernon 2005). The complainant's testimony regarding Bronaugh masturbating in her presence is relevant and admissible under article 38.87, section 2. See id.; Saenz v. State, 103 S.W.3d 541, 544-45 (Tex.App.-San Antonio 2003, pet. ref'd); Gutierrez v. State, 8 S.W.3d 739, 749-50 (Tex.App.-Austin 1999, no pet.); Walker v. State, 4 S.W.3d 98, 102-03 (Tex.App.-Waco 1999, pet. ref'd). Even if admissible under article 38.37 however, the evidence may still be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002). We must give appropriate deference to the trial court's determination that the probative value of the evidence in question is not substantially outweighed by the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). We must uphold the court's ruling if it lies "within the zone of reasonable disagreement." Wheeler, 67 S.W.3d at 888 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)).

The appellate court should not conduct a de novo review of the record with a view to making a wholly independent judgment whether the probative value of evidence of "other crimes, wrongs, or acts" is substantially outweighed by the danger of unfair prejudice. It should reverse the judgment of the trial court "rarely and only after a clear abuse of discretion."

Moses, 105 S.W.3d at 627 (quoting Montgomery, 810 S.W.2d at 392). Factors to be considered in balancing the probative value of evidence against the danger of unfair prejudice include:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003) (quoting Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999)); accord Wheeler, 67 S.W.3d at 888. The challenged testimony was relevant to the issue of whether Bronaugh sexually assaulted his daughter. Aside from the complainant's testimony, the State had little evidence to prove that Bronaugh sexually assaulted his daughter. Although there was medical evidence that she had been assaulted, the record also contains evidence that she had been sexually assaulted by two others. Thus, the testimony served compellingly to make it more probable than not that Bronaugh sexually assaulted his daughter. See Wheeler, 67 S.W.3d at 888. The testimony did have the potential to impress the jury in an irrational way, but it required little of the jury's time to present. Id. at 889. Finally, on the issue of whether the State had a "need" to present the challenged testimony, Bronaugh contends that it would be premature to conclude that the State "needed" to present this testimony during its case-in-chief because he did not deny that he had committed the offense until he took the stand later and testified. However, this is not the only way to gauge the State's "need" for the challenged testimony. Rather, the issue of whether the State needs a challenged piece of evidence "to prove a fact of consequence" focuses on whether the State has "other probative evidence available . . . to help establish this fact" and whether "this fact [is] related to an issue in dispute." Manning, 114 S.W.3d at 926. As noted, the State's case essentially boiled down to a swearing match between Bronaugh and the complainant. The State's medical evidence could be discounted by the complainant's sexual history. Therefore, the trial court was within its discretion to conclude that the State "had a great need" for the challenged testimony. See Wheeler, 67 S.W.3d at 889. The trial court arguably could have ruled either way on the admissibility of this testimony under Rule 403. We cannot say that the court's ruling was outside "the zone of reasonable disagreement." See Wheeler, 67 S.W.3d at 888-89. Accordingly, we overrule Bronaugh's first issue.

1 This was according to the "State's Second Notice of Intent to Offer Evidence [of Extraneous Conduct]." The State's original notice listed 19 incidences of extraneous conduct.

The Complainant's Truthful Character

Bronaugh contends in his second issue that the court abused its discretion by permitting two of the State's witnesses to testify regarding the complainant's truthful character. The State called Karen Vogle, the complainant's second grade teacher, to testify about the complainant's statements to her about the alleged abuse. The prosecutor asked Vogle whether she had an opinion regarding the complainant's character for truth and veracity. Vogle replied that she believed the complainant. The State called Michelle Davis, a counselor who treated the complainant, to testify that the complainant's conduct was consistent with that of a child who had been sexually abused. The prosecutor asked Davis whether she had observed any conduct of the complainant which would cause her to question whether the complainant was being truthful. Davis testified that she had not observed any such conduct. When a complainant is impeached with prior inconsistent statements, the State may rehabilitate the complainant with evidence of the complainant's character for truthfulness under Rule 608(a)(2).² Pavlacka v. State, 892 S.W.2d 897, 902 (Tex.Crim.App. 1994). "Expert witness testimony that a child victim exhibits elements or characteristics that have been empirically shown to be common among sexually abused children is relevant and admissible under Rule 702 because it is specialized knowledge that is helpful to the jury." Gonzales v. State, 4 S.W.3d 406, 417 (Tex.App.-Waco 1999, no pet.); accord Burns v. State, 122 S.W.3d 434, 437 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Hitt v. State, 53 S.W.3d 697, 707 (Tex.App.-Austin 2001, pet. ref'd). However, "expert testimony that a particular witness is truthful is inadmissible under Rule 702." Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App. 1993); accord Burns, 122 S.W.3d at 437; Hitt, 53 S.W.3d at 707; Gonzales, 4 S.W.3d at 417. Bronaugh characterizes Vogle as an expert witness. We disagree with his characterization. The record is clear that the State called Vogle as a lay witness to testify about the statements the complainant made to her regarding the alleged abuse. Bronaugh had previously impeached the complainant with prior inconsistent statements. Thus, the State properly sought to rehabilitate the complainant with Vogle's testimony regarding her character for truthfulness under Rule 608(a)(2). See TEX. R. EVID. 608(a)(2); Pavlacka, 892 S.W.2d at 902. Davis properly testified that the complainant exhibited characteristics similar to those of children who have been sexually abused. See Burns, 122 S.W.3d at 437; Hitt, 53 S.W.3d at 707; Gonzales, 4 S.W.3d at 417. Davis's testimony that she did not observe any behavior which would cause her to question whether the complainant was being truthful is not a direct comment on the complainant's truthfulness. See Schutz v. State, 957 S.W.2d 52, 73 (Tex.Crim.App. 1997); Burns, 122 S.W.3d at 437. Accordingly, the court did not abuse its discretion by overruling Bronaugh's objections to Vogle's and Davis's testimony. Thus, we overrule Bronaugh's second issue.

The Complainant's Attitude About Prior Sexual Experiences

Bronaugh contends in his third issue that the court abused its discretion by sustaining the State's objection to the testimony of two daycare workers regarding the carefree nature with which the complainant talked to them about an incident when she was caught acting out sexually with her brother and about being sexually assaulted by her uncle.³ However, the State later withdrew its objection, and the court informed Bronaugh that he could call the daycare workers to give this testimony. Thereafter, Bronaugh called one of the daycare workers who gave this testimony without objection. Because the trial court ultimately allowed the testimony which Bronaugh contends was excluded, we overrule his third issue. Cf. Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004) (to challenge exclusion of evidence on appeal, defendant must obtain adverse ruling).

The Mother's Alleged Physical Abuse

Bronaugh contends in his fourth issue that the court abused its discretion by excluding testimony from Vogle that the complainant told her that her mother was physically abusing her. Bronaugh did not make an offer of proof concerning the substance of the testimony he wanted to elicit from Vogle. Thus, he has not preserved this issue for our review. See Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999); Simmons v. State, 100 S.W.3d 484, 495 (Tex.App.-Texarkana 2003, pet. ref'd). Accordingly, we overrule his fourth issue. We affirm the judgment.