Opinion
No. 09-09-00012-CR
Submitted on August 30, 2010.
Opinion Delivered October 6, 2010. DO NOT PUBLISH.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 08-04-03354 CR.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Aaron Wesley Cook appeals his conviction for aggravated sexual assault of a child, a first degree felony. See TEX. PEN. CODE ANN. § 22.021(a)(1)(B) (Vernon Supp. 2010). In his appeal, Cook raises eight issues. In issue one, Cook argues the trial court erred by allowing the forensic interviewer of the child complainant to testify on the subject of delayed outcries of children. In issues two through eight, Cook asserts the trial court erred by overruling his objections to the testimony of the State's expert witness, Dr. Roger Saunders. We overrule Cook's issues and affirm the trial court's judgment.
Although the Legislature amended section 22.021 of the Texas Penal Code after the date that Cook is alleged to have committed the offense, the changes that were made to this section of the Penal Code are not pertinent to this appeal. Therefore, we cite the current version.
Background
In April 2008, the State indicted Cook for aggravated sexual assault of a child. The indictment alleges that on or about January 10, 2007, Cook intentionally or knowingly caused "the mouth of M.C. to contact" his "sexual organ[.]" The parties tried the case to a jury in October 2008. According to the trial testimony, from approximately February 2005 to February 2007, M.C. lived in a home occupied by her mother and Cook. After Cook and Mother's relationship ended, Mother and M.C. moved to Mother's parent's home. Subsequently, while M.C. was attending first grade, a teacher from M.C.'s school told M.C.'s maternal grandmother ("Grandmother") that M.C. had used sexual language during school. Grandmother explained to M.C. that the language she had used was inappropriate. A few days later, M.C.'s grandfather gave Grandmother a page of notebook paper on which M.C. had repeatedly written the word "sex." Grandmother understood that M.C. had shown the page to other children. When Grandmother spoke with M.C. about what was written on the notebook paper, M.C. told Grandmother about Cook's misconduct. The following day, Grandmother and Mother contacted the Montgomery County police. M.C. was eight years old at the time of trial. Generally, she testified that Cook made her engage in the conduct described in Cook's indictment. M.C. described details of Cook's conduct, and she explained that Cook's conduct had occurred on several different occasions. Lisa Holcombe, a forensic interviewer, testified during the guilt-innocence phase of Cook's trial. At the time of trial, Holcombe had worked for the Children's Assessment Center, an agency that deals with childhood sexual abuse, for approximately thirteen years. Holcombe testified that she had conducted over seven thousand forensic interviews. During the trial, the prosecutor asked Holcombe whether she had experience with delayed outcries, and Holcombe answered that she did. Holcombe explained that it was very common for children not to say anything about having been abused, and she then gave several reasons that might explain why a child might not complain of abuse at the time that it initially occurs. Dr. Roger Saunders, a psychologist and licensed sex offender treatment provider, also testified. Before the jury heard Saunders's testimony, the trial court allowed both parties to voir dire Dr. Saunders outside the presence of the jury on his qualifications as an expert. Subsequently, the trial court ruled that the jury could hear Dr. Saunders's testimony on the general behaviors and characteristics of persons involved in situations of sexual abuse, but the trial court ruled that the attorneys were not to ask specific questions that apply these characteristics to M.C. or Cook. The trial court granted Cook's request for a running objection to Dr. Saunders's testimony on the general subject of persons involved in situations of sexual abuse. However, the trial judge advised Cook's attorney that "if anything else comes up more specific, you know, be sure and cover yourself on that, but I think the Record is very clear." Dr. Saunders then testified before the jury. Consistent with the trial court's ruling, he testified generally concerning characteristics of sex offenders and sexual abuse victims. Dr. Saunders testified that sex offenders are generally hesitant to admit to allegations of wrongdoing. Dr. Saunders described grooming as a behavior that offenders use to "soften up or prepare a potential victim for abuse." For instance, Dr. Saunders explained that an offender is grooming a child by showing the child pornography. He testified that many victims delay reporting their abuse and that delayed outcries are common. According to Dr. Saunders, victims delay reporting abuse for several reasons, including that some perpetrators may intimidate or threaten the victim, or that the victim may fear that reporting the abuse will cause the perpetrator to get in trouble. Dr. Saunders explained that coaching is when a person tries "to encourage or promote a victim to say something that did not occur, either to cover up for a sexual offense or to make a false accusation of sexual abuse." Finally, Dr. Saunders stated that there were many variables at play in a victim's response to sexual abuse, and he testified that there is no defined manner to determine how a person might behave following an assault. During cross-examination, Dr. Saunders specifically agreed that his testimony was intended to speak to the generalities of sexual abuse cases, not to the specifics of Cook's case. Aaron Cook testified during the guilt-innocence phase of his trial. Cook explained that he first learned of M.C's allegations from Mother. Cook told the jury that he had not engaged in the conduct that M.C. had described during her testimony. Several other witnesses testified during the trial, but their testimonies are not relevant to the issues on appeal. After retiring, the jury found Cook guilty of aggravated sexual assault of a child. After hearing punishment evidence, the jury assessed Cook's punishment at ten years' confinement and imposed a fine of $10,000.00. With respect to Cook's confinement, the jury recommended that Cook's sentence be suspended and that he be placed on community supervision.Preservation of Error
The State argues that Cook did not properly preserve the arguments he advances in issues one through three. In issue one, Cook argues that Holcombe was not qualified to testify as an expert on delayed outcries. In issue two, Cook contends that by asking Dr. Saunders whether sex offenders are generally hesitant to admit or discuss their sexual offenses, the prosecutor commented on Cook's right not to testify. In issue three, Cook asserts that by overruling his objections, the trial court improperly shifted the State's burden of proof to him to make him prove his innocence. First, we address whether Cook waived his right to appellate review of the errors that he complains of in issues one through three. Rule 33.1 of the Texas Rules of Appellate Procedure, concerning error preservation, states: 33.1 Preservation; How Shown(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.TEX. R. APP. P. 33.1. With respect to Holcombe's testimony that Cook identified in issue one as objectionable, we review the record to evaluate whether Cook preserved error. Cook complains of the following testimony:
[Prosecutor:] Okay. Do you have any experience or training with regard to delayed outcries?
[Holcombe:] Oh, yes.
[Prosecutor:] Okay. Can you tell us a little bit about why a child may not come forward immediately and outcry a statement about what happened?
[Defense Attorney]: Same objections, Your Honor. It goes to veracity.
The Court: Overruled. Overruled. "A child" was the question. We're talking generalities.
[Defense Attorney]: Judge, for purposes of the Record, I need to list the rules here, and I'll just go under 403, 608, 702 and 704.
The Court: Overruled. Let's move along.
[Holcombe]: Can you repeat the question? I'm sorry.
[Prosecutor:] Yes. Can you tell us some reasons why a child may have a delayed outcry?
[Holcombe:] Well, there could be several reasons. You could have a child that cares very much about the perpetrator. You could have them being concerned about what will happen to their family, their siblings, financial reasons, their own safety. They may have been threatened or told not to talk about it. They may feel shamed and dirty themselves, like they were a part of the abuse. And the mere fact that, you know, their whole family could be torn apart.
[Prosecutor:] All right. And when we're talking about delayed outcry, have you ever known children to delay as long as, more than a year?
[Defense Attorney]: Objection as to relevance, Your Honor.
The Court: Overruled.
[Holcombe]: Yes.
[Prosecutor:] All right. Have you known them to delay longer than that? Is that common?
[Holcombe:] Very common.
[Prosecutor:] For all of these reasons you just gave.
[Holcombe:] Right.On appeal, Cook argues that his objection, which was based on several different provisions in the Texas Rules of Evidence, informed the trial court "that he was objecting to the qualifications of Holcombe to testify as to delayed outcry." Without stating the basis for the objection, Cook objected under four separate Rules of Evidence including 403, 608, 702, and 704. There are multiple arguments that might be advanced to explain why testimony is inadmissible under each of these rules. By giving the trial court a laundry-list of rules, without stating the basis for each objection, Cook obscured the basis of his complaint from the trial court. Absent some explanation that alerts the trial court that the attorney is complaining of the expert's qualifications, an objection that lists various Rules of Evidence is not sufficiently specific to make the trial court aware of the objector's complaint. See TEX. R. APP. P. 33.1(a)(1)(A). "Generally speaking, a party's complaint is adequately specific if the party lets the trial judge know what he wants and why he is entitled to it[.]" Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (noting one purpose for requiring parties to raise complaints to the trial court is to allow the trial court the opportunity to address claimed errors while they can be corrected); see also Mays v. State, No. AP-75,924, 2010 WL 1687779, at *9 (Tex. Crim. App. Apr. 28, 2010) (explaining that a laundry-list of objections to the charge that fails to specify facts or legal theories to support submitting a question "risk being considered `sandbagging' objections that fail to preserve any issue for review"). Here, Cook's objection failed to inform the trial court of the specific reasons for his objections. Had Cook explained that Holcombe was not sufficiently qualified or that she lacked sufficient educational qualifications to address the subject of delayed outcries, the parties and the trial court could have then decided whether it was necessary to develop additional background on Holcombe's qualifications or on her education. Further, had Cook complained that the Prosecutor's question about delayed outcries was not a fact in issue, the trial court could have focused on whether the testimony would have been helpful under the specific circumstances of this case. "A specific objection regarding expert testimony must detail the particular deficiency in the expert's qualifications or the reliability of the expert's opinions." Acevedo v. State, 255 S.W.3d 162, 167 (Tex. App.-San Antonio 2008, pet. ref'd). We conclude that the manner in which Cook lodged his objection to Holcombe's testimony failed to apprise the trial court of the specifics of his complaint concerning Holcombe's qualifications to testify as an expert. Consequently, we hold that Cook failed to preserve his complaint in issue one for appellate review. Issue one is overruled. In issue two, Cook argues that Dr. Saunders's testimony regarding sexual offenders' hesitancy to admit or discuss their behaviors related to their offenses constitutes a comment on his right not to testify. Specifically, Cook complains that the prosecutor's questions "were a direct comment on [Cook] not testifying and his failure to admit to the offense prior to trial[]." However, Cook's attorney failed to object to the prosecutor's questions. Instead, Cook's attorney objected only to the prosecutor's prompting of Dr. Saunders to discuss the subject of sexual offenders. Cook's attorney did not secure a running objection or renew his Fifth Amendment objection to the specific questions about which he now complains on appeal. Rule 33.1 of the Texas Rules of Appellate Procedure generally requires an objection as a prerequisite to receiving appellate review. TEX. R. APP. P. 33.1. Moreover, a prosecutor's attempt to impeach a defendant with evidence of his silence is waived unless an objection was lodged when the question was asked. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (holding that defendant's complaint about prosecutor's questions on post-arrest silence were not preserved for review in the absence of an objection to the questions); see also Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994). Because Cook did not object when the prosecutor asked these questions, he failed to preserve this issue for our review. Cook's second issue is overruled. In issue three, Cook complains that during final argument, the prosecutor shifted the burden of proof by improperly alluding to Cook's silence and to Cook's denial that he had assaulted M.C. Additionally, in his third issue, Cook argues that Dr. Saunders's testimony that sexual offenders were hesitant to discuss their offenses also shifted the burden of proof. As was the case with his Fifth Amendment objection, during the prosecutor's examination of Dr. Saunders, Cook failed to renew his objection based on his claim that the prosecutor's questions shifted the burden of proof. The record also reveals that Cook failed to object to the prosecutor's final argument criticizing Cook for his pre-arrest silence. "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). Alleged errors that occurred in a trial court are to be disregarded unless the defendant's substantial rights were affected by the alleged error. See TEX. R. APP. P. 44.2(b); see also Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (holding that nearly every right may be waived by a party's failure to timely object during trial). Here, Cook does not assert that the prosecutor's argument constitutes fundamental error of constitutional dimension. Instead, Cook characterizes the error as non-constitutional error. We conclude that the exceptions regarding error preservation do not apply to the circumstances here. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding "a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal"). We hold that Cook's issue three complaints were not preserved for our review. TEX. R. APP. P. 33.1. Cook's third issue is overruled.
General Character Traits and Opinion on Truthfulness
In issue four, Cook argues that the probative value of Dr. Saunders's testimony about sex offenders refusing to discuss their offenses was outweighed by its prejudicial effect. Issue five argues that the trial court improperly bolstered M.C.'s credibility by allowing Dr. Saunders to testify about characteristics and behaviors of victims of sex abuse. Issue six asserts that Dr. Saunders vouched for M.C.'s truthfulness. In issue seven, Cook argues that Dr. Saunders's testimony describing the characteristics of sex offenders was inadmissible character evidence. In issue eight, Cook asserts that the prejudicial effect of Dr. Saunders's testimony describing the characteristics of sex offenders outweighs any probative value. The State responds that the trial court properly admitted the testimony of Dr. Saunders because the court limited the testimony to general characteristics of sex abusers and sex abuse victims. Dr. Saunders testified that in general, sex offenders are reluctant to talk about their crimes, they fear social stigma and retribution that could result from their crimes, they often blame the offense on the victim, and they commonly engage in grooming behaviors aimed at preparing the victim for abuse and at securing the victim's silence. He also testified that most victims never report the abuse, and that delayed reporting of sexual offenses is common. Dr. Saunders explained that children often have a difficult time placing things in a chronological framework. However, Dr. Saunders never linked the general traits he discussed about sex offenders to Cook, nor did he link the general traits that he discussed about abuse victims to M.C. During cross-examination, Dr. Saunders specifically explained that he was not speaking about the evidence in this case; instead, he explained that he was generally discussing characteristics that were commonly found in sex offenders and in sex abuse victims. Admissible expert testimony assists the jury. See TEX. R. EVID. 702. Testimony from an expert witness about behaviors typically exhibited by children suffering sexual abuse can be relevant in trials involving a charge of indecency or injury to a child. See Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). In Cohn, the Court of Criminal Appeals held that a physician's testimony that anxiety behavior was consistent with sexual abuse was relevant to the circumstances of that case. Id. Moreover, the Court of Criminal Appeals has explained that "the State may be able to proffer an expert to testify, e.g., that in his opinion, based upon experience or empirical data, children who have been sexually abused sometimes give conflicting accounts or even recant their initial outcry." Pavlacka v. State, 892 S.W.2d 897, 902 n. 6 (Tex. Crim. App. 1994). "The State may not, of course, elicit so-called `expert' testimony that a particular child is telling the truth, or that child complainants as a class are worthy of belief." Id. (citing Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993)). Before Dr. Saunders testified, Cook objected to Dr. Saunders's testimony about general character traits of sex offenders based on Rule 403 of the Texas Rules of Evidence, but he did not make a Rule 402 objection that the general testimony was not relevant. Texas Rule of Evidence Rule 403 provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.Here, because Cook did not object to relevance, our review is limited to determining whether the probative value of the evidence was outweighed by its prejudicial effect. We review a trial court's admission of evidence over a Rule 403 objection for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court abuses its discretion when its "decision lies outside the zone of reasonable disagreement." McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). Cook argues that Dr. Saunders's testimony about sexual offenders' hesitancy to discuss their offenses was prejudicial. Dr. Saunders explained that sex offenders are generally hesitant to talk or admit to having committed an offense when initiating their treatment. He then explained that in his experience, after developing a therapeutic rapport, offenders are able to take greater responsibility for their behavior. However, Dr. Saunders never linked these observations to Cook. Under these circumstances, while Dr. Saunders's general testimony about sex offenders' hesitancy to speak about their offenses does not strike us as being testimony that is particularly probative on the disputed issues, neither was it unduly prejudicial, as Dr. Saunders never linked his observations to Cook. As a result, we conclude that Dr. Saunders's testimony was not unduly prejudicial, and the trial court's decision to admit this testimony was within the zone of reasonable disagreement. See McCarty, 257 S.W.3d at 239. Cook's fourth issue is overruled. Issues five and six argue that Dr. Saunders's testimony amounts to a direct opinion on M.C.'s truthfulness. "Expert testimony does not assist the jury if it constitutes `a direct opinion on the truthfulness' of a child complainant's allegations." Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (citing Yount, 872 S.W.2d at 708). Cook complains of Dr. Saunders's testimony that explained the types of clues that he looks for to reveal whether a sexual assault victim has been coached, and his explanation of the difference between sensation and perception. Cook concludes that this "line of questioning was an improper bolstering of the complaining witness." As we have discussed, Dr. Saunders never expressed the opinion that he believed M.C. had been coached. Instead, Dr. Saunders's testimony imparted scientific, technical, or specialized knowledge that related to his general experience with victims who had been sexually abused. We conclude that Dr. Saunders's testimony did not convey whether he had an opinion regarding M.C.'s truthfulness. Rather, the testimony that Cook complains of is similar to the type of testimony the Court of Criminal Appeals found properly admitted in Pavlacka and in Cohn. See Pavlacka, 892 S.W.2d at 902; Cohn, 849 S.W.2d at 819. Since the trial court's admission of the testimony was within the zone of disagreement, the testimony's admission was within the court's discretion. Issues five and six are overruled. In issues seven and eight, Cook complains that he was prejudiced by Dr. Saunders's testimony on the subjects of displacing blame, grooming, delay in the victim's outcry, and coaching. Cook also complains that Dr. Saunders was permitted to explain his understanding of the difference between sensation and perception. Cook concludes that this testimony "was nothing more than a backdoor way of having the expert state that the complaining witness was telling the truth and [that Cook] was lying." In each of these subject areas, Dr. Saunders never expressed an opinion linking the character traits he discussed to either M.C. or Cook, nor did he link the general traits he discussed to any specific facts involved in the case. Instead, Dr. Saunders related his general experience that sex offenders often transferred blame for their offense to others. He explained that grooming usually involved meeting a need and only rarely involved a monetary consideration, and that grooming helped secure the victim's silence. Dr. Saunders also explained that in his experience a delayed outcry did not necessarily mean that no assault had occurred. Additionally, Dr. Saunders described the characteristics he looked for to detect that a victim had been coached. We hold that the testimony that Cook complains of did not constitute a direct comment on the truthfulness of any of the witnesses who testified at trial. Schutz, 957 S.W.2d at 59. Additionally, the trial court has discretion to permit background testimony that is not unduly prejudicial even if the probative value is limited. We hold that the testimony that Cook complains of was not unduly prejudicial, and the admission of Dr. Saunders's testimony was within the zone of reasonable disagreement. See McCarty, 257 S.W.3d at 239. Issues seven and eight are overruled. Having considered and overruled each of Cook's issues, we affirm the trial court's judgment. AFFIRMED.