Nos. 05-05-00114-CR, 05-05-00115-CR
Opinion Filed July 31, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause Nos. 219-81599-03 and 219-81600-03.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
MARTIN RICHTER, Justice.
A jury convicted Richard James Bucknell of the aggravated sexual assaults of C.L. and A.L. and assessed punishment in each case at fifty years' confinement. Bucknell appeals raising five issues. In his first issue, Bucknell asserts he is entitled to a new trial in each case because the record of the testimony of Jennifer Edwards, a sex offender treatment provider, has been lost or destroyed through no fault of his own. In his second and third issues, Bucknell contends he is entitled to a new trial in each case because the court erred in admitting Edwards's testimony. In his fourth issue, Bucknell asserts he is entitled to a new trial in A.L.'s case because the court erred in allowing a portion of the testimony of investigating detective Ida Wei, and in his final issue, Bucknell alleges his conviction for the sexual assault of C.L. should be reversed because the evidence is legally and factually insufficient. Finding no merit to any of Bucknell's issues, we affirm the convictions.
Background
The assaults occurred during Bucknell's four-year marriage to C.L. and A.L.'s mother, and consisted, per the indictments, of digital penetration of C.L.'s sexual organ and oral contact of A.L.'s sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i),(ii), (a)(2)(B) (Vernon Supp. 2006). At trial, C.L., age eleven, testified Bucknell began molesting her when she was "about" six years old and continued until her mother separated from him when she was "about" nine. C.L. testified she often "crawled into bed" in the middle of the night with her mother and Bucknell and would later be awakened by Bucknell's touching and rubbing her "private part-the part you use the bathroom with" with his hand and fingers. According to C.L., Bucknell would sometimes touch and rub over her clothes and other times would "go down through the waist of [her] shorts or panties" and touch her skin. Bucknell would also touch her in the "wrong places"-"the bottom half that['s used for] the restroom"-when bathing her. The touching "did not hurt, but felt weird." C.L. testified that in addition to the touching, there were times when Bucknell pressed his "front part" up against her "back part" and took her hand, put it on his "front part," and told her to just "keep it there." Bucknell also showed her pornographic movies. Although she knew what Bucknell was doing was wrong, C.L. did not immediately tell her mother because Bucknell told her not to tell and she did not want to break up the marriage. C.L. finally disclosed what had happened after learning that one of her friends had disclosed that Bucknell had also touched her inappropriately. C.L. testified that she did not know Bucknell had molested A.L. until after she was interviewed by a child advocacy caseworker. A.L., age nine at trial, also testified that Bucknell "did bad stuff" to her. In addition to touching and rubbing her "hiney" and legs, he pinched her in the chest, put her hand on his "private part," "licked" her "hiney," and showed her pornographic movies. Although she too knew what Bucknell was doing was wrong, she did not disclose the abuse until she was interviewed by a caseworker. A.L. testified she "did not say anything" because she was afraid. Michelle Hiza, a Child Protective Services worker, and McKinney detective Ida Wei testified they investigated the allegations and, as part of the investigation, observed the interviews of C.L. and A.L. and also individually interviewed Bucknell. A.L. and C.L. were very descriptive in their interviews and C.L. even demonstrated how Bucknell touched her. According to Hiza, Bucknell informed her he had a drug problem and "pretty much corroborated" what A.L. and C.L. had disclosed "except he stated it was all an accident." From Bucknell's demeanor and responses during the interview, Hiza believed Bucknell was deceptive and manipulative, like many sex offenders. Wei testified similarly to Hiza, stating that Bucknell also admitted a drug problem during his interview with her and also that he "inadvertently could have touched [C.L.'s] labia majora" and "accidentally could have brushed [his] mouth up against [A.L.'s] labia majora." Both Hiza and Wei believed the children had been assaulted and Bucknell's actions were not accidental. The interviews of Bucknell were videotaped and the videotapes admitted into evidence and shown to the jury. Beth Hudson, a sexual abuse nurse examiner, testified she examined both C.L. and A.L. following the disclosures. Although the physical exams were normal, a common situation given the nature of the allegations, she believed Bucknell had committed aggravated sexual assault based on C.L. and A.L.'s description of what happened. Hudson testified that as C.L. told her that Bucknell had "rubbed between her legs"with his hands, she pointed to her "female sexual organ." Hudson considered Bucknell's rubbing between C.L.'s legs to be penetration because "when you go between the legs, you hit the labia majora and that's the barrier for penetration." Bucknell did not testify and did not call any witnesses. Sufficiency of the Evidence
In his fifth issue, Bucknell asserts the evidence is legally and factually insufficient to support the conviction for the aggravated sexual assault of C.L. In arguing this issue, Bucknell notes C.L. did not specifically testify he penetrated her and relies on C.L.'s testimony that the touching did not hurt. Bucknell also relies on the testimony of Hudson, the nurse examiner, that C.L.'s physical examination was normal and discounts Hudson's opinion that penetration occurred. Bucknell maintains that nothing in the record allows for an inference that penetration occurred and as such, his conviction should be reversed. We review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Under this standard, the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). We review a challenge to the factual sufficiency of the evidence to support a conviction by viewing all the evidence under a neutral light and determining whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), petition for cert. filed, — U.S.L.W. — (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id. To establish penetration of a female sexual organ, the State need not prove entry into the vaginal canal; proof beyond a reasonable doubt of "entry" or a "passing through" of the outer vaginal lips is sufficient. Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992); Rodda v. State, 926 S.W.2d 375, 378 (Tex.App.-Fort Worth 1996, pet. ref'd). The State may satisfy its burden through circumstantial evidence or through the victim's testimony alone. Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Medical evidence is not required, nor is specific testimony from the victim that penetration occurred. Villalon, 791 S.W.2d at 133; Bottenfield v. State, 77 S.W.3d 349, 355 (Tex.App.-Fort Worth 2002, pet. ref'd); Empty v. State, 972 S.W.2d 194, 196 n. 1 (Tex.App.-Dallas 1998, pet. ref'd). Viewing the evidence under the appropriate standard, we conclude the evidence is both legally and factually sufficient to support the verdict. Although no medical evidence supported the allegation, none was required. Bottenfield, 77 S.W.3d at 356; Empty, 972 S.W.2d at 196 n. 1. From C.L.'s testimony that Bucknell touched and rubbed with his finger her "private part-the part you use the bathroom with," the jury could have inferred Bucknell penetrated the outer lips and even entered the vaginal canal and could have found beyond a reasonable doubt that Bucknell committed the offense. See Tear, 74 S.W.3d at 560; see also Rodda, 926 S.W.2d at 377-78 (concluding evidence legally sufficient to support aggravated sexual assault conviction by digital penetration where victim testified appellant fingers went just inside outer lips. That the touching did not hurt is irrelevant. See Tex. Pen. Code Ann. § 22.021(a)(1)(B) (requiring only that State prove penetration). C.L.'s testimony at trial was consistent with what she told Hiza and Hudson; from C.L.'s description of what occurred, Hiza, Wei, and Hudson all concluded Bucknell penetrated C.L. Although Bucknell discounts Hudson's testimony, it was for the jury, as the fact finder, to determine what weight to give her testimony. See Jones, 944 S.W.2d at 647, 648-49. Bucknell's contention that the evidence is legally and factually insufficient to support his conviction is without merit. We resolve his fifth issue against him. Missing Record and Admission of Edwards's Testimony
Bucknell's first through third issues concern the testimony of Jennifer Edwards, a sex offender treatment provider, who testified for the State at both the guilt-innocence and punishment phases of trial concerning victim and sex offender dynamics. Edwards's testimony from the guilt-innocence phase was lost or destroyed through no fault of Bucknell and the trial judge conducted a hearing in an attempt to reconstruct this significant portion of the record. At this hearing, the trial judge considered an affidavit filed by Bucknell's trial counsel and also testimony from Edwards. Trial counsel stated in his affidavit that his limited trial notes showed that among the areas that Edwards testified were how sex offenders "groom children to gain their trust and set them up for abuse," that she viewed Bucknell's videotaped interviews, and that based on the videotapes, Bucknell appeared "to minimize and manipulate what he had been accused of." Trial counsel believed he objected to this latter testimony as "speculative and invading the jury's province." Edwards testified at the hearing that among the areas she would have discussed at trial were Bucknell's "us[e of] alcohol or drugs as a possible excuse for his behavior or as a possible reason for him not remembering certain events [,] whether that is a common excuse that sex offenders will provide," and "that alcohol and drugs do not cause a person to develop a sexual deviancy or deviant arousal but rather serve to lower inhibition for an arousal that was already there." Although Bucknell could not agree on this testimony as a substitution for Edwards's trial testimony, the trial judge found the hearing testimony "fairly represented" Edwards's trial testimony. Bucknell now contends in his first issue that the substituted testimony cannot be properly considered by this Court and because Edwards's guilt-innocence testimony is missing, he is entitled to a new trial pursuant to Texas Rule of Appellate Procedure 34.6(f). In his second and third issues, Bucknell contends the admission of Edwards's testimony was erroneous because it constituted improper bolstering and she was not properly qualified to testify regarding "signs of deception and the effects of alcohol." To be entitled to a new trial under Texas Rule of Appellate Procedure 34.6(f) when a significant portion of the record has been lost or destroyed through no fault of his own and the parties cannot agree on a complete record, an appellant must show the missing portion of the record is necessary to the appeal. Tex. R. App. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 571 (Tex.Crim.App. 2003). In other words, the appellant must show he was harmed. Routier, 112 S.W.3d at 571; Isaac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App. 1999). If the missing portion of the record is not necessary to the resolution of the appeal, then the loss of that portion of the record is harmless and a new trial is not required. Isaac, 989 S.W.2d at 757. Here, Bucknell argues the missing record is necessary to resolve his evidentiary complaints in issues two and three and, because he cannot agree to the substituted record, he is entitled to a new trial. However, as the State responds, issues two and three can be resolved without Edwards's trial testimony. The admission of evidence in violation of evidentiary rules is non-constitutional error subject to a harm analysis requiring us to determine if appellant's substantial rights have been affected. Tiede v. State, 76 S.W.2d 13, 14 (Tex.Crim.App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In making this determination, we consider the nature of the evidence to support the verdict and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties's trial theories, the court's instructions to the jury, and closing arguments. Id. We will find error in the improper admission of evidence to be harmless when we have a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). Here, we have that assurance. Any "bolstering" effect Edwards's testimony may have had was no different than any "bolstering" effect Hiza and Wei's unobjected-to testimony that they believed the children were assaulted and that Bucknell's actions were not accidental may have had. See Josey v. State, 97 S.W.3d 687, 698 (Tex.App.-Texarkana 2003, no pet.) (if evidence similar to complained-of evidence is admitted without objection elsewhere in trial, any error in admitting complained-of testimony is harmless); Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st] 2002, pet. ref'd) (same). Similarly, Edwards's testimony concerning the "signs of deception" was no different than Hiza's unobjected-to testimony on deception and manipulation. Josey, 97 S.W.3d at 698; Duncan, 95 S.W.3d at 672. Additionally, the record reflects Bucknell's theory at trial was that "it was all an accident" and Edwards's testimony was mentioned only briefly in closing by Bucknell. The record also reflects the jury viewed the recording of Bucknell's interviews and was able to form its own conclusions from the videotape. In fact, the jury was instructed that, as the fact finder, it had the job of making credibility determinations and determinations as to what weight to give evidence. Finally, as stated, the jury could have concluded from C.L. and A.L.'s testimony alone that Bucknell committed the offenses. See Tear, 74 S.W.3d at 560. We conclude Bucknell's contentions in issues two and three that Edwards's testimony was improperly admitted and he was harmed as a result are without merit. And, having concluded the record shows those issues are without merit, we necessarily conclude the missing record is not necessary to the disposition of the appeal and Bucknell is not entitled to a new trial. We resolve Bucknell's first three issues against him. Admission of Wei's Testimony
In his fourth issue, Bucknell argues the court erred in allowing Wei to testify that the contact between him and A.L. was accidental. In response, the State argues Bucknell failed to preserve error because Wei so testified on more than one occasion but Bucknell did not object each time. We agree. To preserve error in the admission of evidence, a party must object each time the inadmissible evidence is offered unless a running objection is obtained or a hearing outside the jury's presence is requested. See Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). Here, Bucknell did not object each time the complained-of testimony was elicited and did not obtain a running objection nor request a hearing outside the jury's presence. Thus, no error is preserved. We resolve Bucknell's fourth issue against him. We affirm the trial court's judgments.