Opinion
No. 05-18-00898-CR
02-20-2020
MICHAEL EDWARD HARSSEMA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-80837-2018
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Schenck
Opinion by Justice Schenck
Michael Edward Harssema appeals his convictions for one count of sexual assault of a child and two counts of indecency with a child by contact. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
The evidence at trial establishes the following. K.I. was born in the spring of 1997. By the time she turned sixteen, she had been a victim of sexual assault and had suffered from physical ailments and an eating disorder that resulted in surgery to remove her gallbladder and a diagnosis of bulimia. K.I. also had been placed on probation and in a juvenile detention center for possession of marijuana. On her sixteenth birthday, K.I. attempted suicide. As a result, K.I. spent approximately one month at Terrell State Hospital. During her stay, K.I. was taken to the emergency room "almost every day throwing up blood." K.I.'s mother hired an attorney to represent K.I. to obtain her release from the hospital and to bring suit against the juvenile detention authorities. When K.I.'s mother became unhappy with the attorney she hired, she posted a description of the legal services she sought on behalf of her daughter on a website, and appellant responded. Appellant represented that he had worked with children as a social worker and that he had worked with an organization that provided representation to sex-trafficking victims.
K.I.'s mother hired appellant because he appeared to be knowledgeable about eating disorders and the behaviors that often accompany them. K.I.'s mother and father met with appellant and appellant's investigator for dinner. Prior to that meeting, appellant asked K.I.'s mother to bring "progression pictures" of K.I. that showed her appearance from the time her eating disorder began to the present. At the time K.I.'s mother met with and hired appellant, she was desperate to help K.I. and felt like, "[f]inally somebody was going to help." With appellant's assistance, K.I.'s mother was able to get K.I. medically released to her home.
Upon her release, K.I.'s mother explained to K.I. that she had arranged for her to be admitted to a clinic in Arizona to treat her eating disorder. At first, K.I. seemed agreeable to be immediately admitted to that clinic, but then, according to K.I.'s mother's testimony, appellant and K.I. convinced K.I.'s mother to delay her admission and allow her to stay at home for a few more days.
A reasonable juror may have inferred that appellant and K.I. discussed this with K.I.'s mother separately since they did not meet until the following day.
On June 21, 2013, the day after K.I. returned home from Terrell State Hospital, K.I.'s mother took K.I. to meet appellant and appellant's investigator for lunch. K.I.'s mother told K.I. that appellant was going to be her new attorney and was going to help her. At the lunch meeting, appellant told K.I. she was beautiful. He also suggested that it would be better if he could have a meeting alone with K.I. because it would be easier for her to open up to him away from her parents.
After that lunch, appellant asked K.I.'s mother to bring K.I. to a meeting with him at a coffee shop in the afternoon. Appellant told K.I.'s mother he wanted to meet K.I. to discuss her previous sexual assault. Prior to that meeting, K.I.'s mother had told appellant about K.I.'s addictions to marijuana, Xanax, and "cheese," a form of heroin. At the coffee shop, appellant asked K.I.'s mother to leave him alone with K.I., so that she would open up more to him. K.I.'s mother left the coffee shop to sit out front in her car while they talked. According to her testimony, at the coffee shop meeting K.I. felt as though appellant was a friend and felt comfortable talking with him about her previous sexual assault and drug use. After that conversation, K.I. told appellant she felt anxious and he offered her a Xanax.
At about 6:30 or 7:00 p.m., K.I.'s mother went back inside to take K.I. home. Appellant and K.I. asked if K.I. could go to dinner with appellant and his girlfriend that night. K.I.'s mother agreed and left K.I. with appellant.
On the way to dinner, appellant showed K.I. a gun in his car. At the restaurant, there was no girlfriend, only appellant and K.I. Throughout the dinner, appellant continued to give K.I. compliments and discussed her prior sexual assault with her. After dinner, appellant called K.I.'s mother to tell her they were on their way home, but instead appellant drove K.I. to a gas station.
At the gas station, appellant told K.I. to stay inside the car while he went inside the store and purchased a "Four Loko," an alcoholic beverage, for K.I. and a beer for himself. Appellant then drove K.I. around a neighborhood for a few minutes before parking the car again.
K.I. described the events as follows. When appellant parked the car, K.I. felt safe and believed appellant was her friend. Appellant reached over to K.I. and touched her breasts over her clothes with his hands. Appellant then began to touch K.I.'s genitals. She told him to stop. Appellant looked at her with a confused and angry expression. K.I. testified she wanted appellant to be her friend and believed she needed to have sex with him in order for him to like her, so she said, "okay." Appellant and K.I. then climbed into the backseat of appellant's car where he proceeded to have sexual intercourse with her. Afterwards, appellant told K.I. not to tell her mother what had happened because he could lose his license, which K.I. testified made her feel "a little stupid." Appellant then drove the car to a convenience store to buy paper towels to clean up the Four Loko that had spilled in his car when he and K.I. climbed into the backseat. It was only after appellant cleaned his car that they returned to K.I.'s home. Appellant told K.I. to tell her mother that his car had broken down. When they arrived at K.I.'s home, appellant gave K.I. a $100 bill, which K.I. testified made her feel like a prostitute.
Although appellant and K.I. had called her mother from the restaurant and later after dinner when they told her appellant was bringing K.I. home, K.I.'s mother did not hear from appellant again until approximately 2:00 a.m. the next morning when appellant called her from a convenience store. In between the call after dinner and the call at 2:00 a.m., K.I.'s mother panicked, thinking appellant and K.I. must have been involved in an accident. She called appellant several times and called appellant's investigator to find them. When appellant and K.I. finally arrived at K.I.'s home, appellant told K.I.'s mother his car had broken down as she had been instructed. Despite that explanation for his delay in bringing K.I. home, appellant drove K.I. and her mother in the early hours of that morning to see the house where K.I. had been previously sexually assaulted. K.I.'s mother saw no signs the car had overheated or otherwise needed repair.
Later the next morning, K.I.'s mother found a $100 bill and some pills in K.I.'s clothes. When asked about them, K.I. told her mother appellant had given them to her. K.I.'s mother called appellant who denied having given them to K.I. and drove over to their home. Appellant told K.I.'s mother that K.I. had stolen the money from him and in private begged K.I. to not tell her mother that he had given her the money.
Over the ensuing weeks, appellant visited K.I.'s house many times, usually in the afternoon and worked to engender her reliance on him. Appellant also asked K.I.'s mother to work for him as a paralegal and purchased a computer for her to do so. During that time period, K.I. went to another treatment center for a week for her eating disorder. While at the treatment center, appellant spoke with K.I. every day, telling her he would bring her home and could get her emancipated so he could marry her. Appellant also told K.I. that her father was not a "good dad." Appellant told K.I. and her parents on numerous occasions that, based on K.I.'s descriptions of her previous sexual assault, he believed she had been involved in sex trafficking by cartels and that the cartels wanted to recapture K.I. Both K.I. and her mother testified they felt anxious when appellant told them he believed the cartels were after K.I. After K.I. returned home from the treatment center, appellant asked to move into K.I.'s house in order to protect her from the cartels, which made K.I. uncomfortable and her father angry. Appellant purchased K.I. an expensive cell phone and a Taser gun and gave K.I.'s mother pepper spray. Beginning before K.I. went into the new treatment center, K.I. became angry when appellant would visit and when he would talk with her. Appellant continued to visit after K.I. returned from the treatment center. He told K.I.'s mother he thought K.I. was beautiful and he wanted to take K.I. to an eating disorder treatment center in Houston. Eventually, appellant stopped visiting.
In January 2014, K.I. was in juvenile detention and first disclosed the assault during group therapy. K.I.'s counselor spoke with K.I. after the outcry to gather more information and made a report to the authorities. Later that month, K.I. was interviewed about the assault at the Children's Advocacy Center of Collin County.
Appellant was charged by indictment with sexual assault of a child and indecency with a child by contact. The case proceeded to trial before a jury, which convicted appellant of one count of sexual assault of a child and two counts of indecency with a child by contact. At the punishment hearing, the jury heard from the detective who investigated the case testify that he spoke with other girls appellant had represented, including K.D. who was twenty at the time of trial. Appellant met K.D. when she was fourteen years old through a nonprofit with the stated purpose of helping victims of human trafficking. K.D. testified she engaged the nonprofit and appellant to obtain her release after her arrest for a probation violation. K.D.'s testimony established that appellant engaged in sexual intercourse with K.I. the day after he secured her release.
Appellant was originally charged on a four-count indictment; the State abandoned Count II during the trial.
Appellant's brother Dr. Martin Harssema was the only witness called by appellant to testify at the punishment hearing. Dr. Harssema testified regarding appellant's neurological condition. At the end of the punishment hearing, the jury sentenced appellant to twenty years' confinement and assessed a fine of $10,000 for each count. On motion of the State, the trial court ruled the sentence in Count III (indecency with a child by touching the breast) would run concurrently with the sentence in Count I (the sexual assault charge), but that the sentence in Count IV (for indecency with a child by touching the complainant's genitals) would run consecutive to the sentences in Counts I and III.
Appellant filed a motion for new trial, which was denied. Appellant timely filed this appeal.
DISCUSSION
In his first and second issues, appellant challenges the trial court's admission of certain testimony from the State's witnesses. In his third issue, appellant argues the trial court erred in limiting his cross-examination of the complainant. In his fourth issue, appellant urges the trial court violated his federal and state rights against double jeopardy by ordering two of the three counts to be served consecutively. In his fifth issue, appellant complains the trial court erred by limiting appellant's presentation of expert testimony during the punishment phase of trial.
I. Testimony from K.I.
In his first issue, appellant argues the trial court erred by denying his motions for mistrial and for a new trial by which he complained about certain testimony from K.I. During cross-examination of K.I., defense counsel asked K.I. about her outcry.
DEFENSE COUNSEL: You didn't lie about forcibly raping you? You told us --At that point, the trial court halted the proceedings, dismissed the jury, and conducted a hearing outside the jury's presence. Appellant moved for a mistrial based on K.I.'s statement, "I'm not the only girl." The trial court denied the motion for mistrial and offered to instruct the jury to disregard K.I.'s statements of "I'm not the only girl" and "This is not fair." Defense counsel declined the offered limiting instruction. After the jury found appellant guilty, counsel reurged his objection to K.I.'s statement. Appellant also complained about this testimony and the trial court's failure to grant a mistrial in his motion for new trial, which did not include any additional evidence. The trial court denied the motion.
K.I.: Yeah. I lied about that, yes. But it is rape. I knew that in my head.
DEFENSE COUNSEL: And your reason for lying was that you didn't want to put yourself in a bad light to these people?
K.I.: No, because I didn't want to come off as a slut. I didn't want to come off as a bad girl for my parents, and I wanted to -
DEFENSE COUNSEL: Did you think maybe that claiming somebody forcibly rapes you puts them in a bad light?
K.I.: He did. The way he take advantage of someone. That is in a "forcibly" light. He took advantage of someone. He gave someone drugs. This is not his - I'm not the only girl. This is not fair.
On appeal, appellant argues the testimony constitutes improperly admitted evidence of extraneous offenses in violation of article 38.37 of the code of criminal procedure and of rule 404(b) of the evidentiary rules and that the harm from the testimony could not be cured, such that the trial court erred in denying appellant's motions for mistrial and for new trial.
Our standard of review of a trial court's ruling on a motion for mistrial and motion for new trial is the same: abuse-of-discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. We may not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. See id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. See id.
A mistrial is appropriate in "extreme circumstances" for a narrow class of highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Whether an error requires a mistrial must be determined by the particular facts of the case. Id.
Because it is an extreme remedy, a mistrial should be granted "only when residual prejudice [would] remain[]" after less drastic alternatives are explored. Id. Less drastic alternatives include instructing the jury "to consider as evidence only the testimony and exhibits admitted through witnesses on the stand," and, questioning the jury "about the extent of any prejudice," if instructions alone do not sufficiently cure the problem. Id. Though requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, we will not reverse the court's judgment if any improper harm could have been cured by the less drastic alternative. Id.
Given the fact that the trial court offered to give a limiting instruction to the jury, it appears from this record that the trial court agreed with appellant that complainant's statements were not admissible. The statement may well have been made in violation of article 38.37 or rule 404(b). See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (allowing for admission of evidence defendant committed sex crimes against children other than victim of alleged offense); TEX. R. EVID. 404(b) (allowing for admission of evidence of prior crime, wrong, or other act to prove motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake or lack of accident). However, testimony referring to or implying extraneous offenses allegedly committed by the appellant may be rendered harmless by an instruction from the trial court unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992).
Appellant argues the complained-of statement was so prejudicial that a limiting instruction could not cure the harmful effect. As support, he relies on the fact that during their deliberations, the jurors they sent a note, after having received no instruction to disregard the statement in which they "[r]equest[ed] testimony from accuser when she raised voice talking about rape (during cross-exam by defense). We are disputing whether or not she mentioned not being the only girl . . . ." However, when a witness answers a question and the trial court later sustains an objection to the question but does not instruct the jury to disregard the answer, the answer remains "before the jury" to be freely considered. See Lumsden v. State, 564 S.W.3d 858, 897 (Tex. App.—Fort Worth 2018), cert. denied, 139 S. Ct. 2018 (2019). Thus, the jurors would not have been permitted to even consider the complainant's statements, much less question whether she made them at all, had appellant accepted the offered limiting instruction. When a party's sole demand is for mistrial, as this appellant's was, our review is limited to that question. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004).
In examining the facts of this case, we note the complained-of statement, "I'm not the only girl," came in the context of defense counsel questioning K.I. as to how she had described appellant's assault of her to others. But the context of the statement does not make its meaning clear. K.I. may have meant to say that she was not appellant's only rape victim, that he had given other girls drugs, or that she was not the only girl to have ever been assaulted. Given that this statement was elicited during cross-examination from defense counsel, we cannot say that this statement so clearly calculated to inflame the minds of the jury. See Kemp, 846 S.W.2d at 308. Further, given the fact that her statement may be interpreted different ways, we cannot conclude it is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. See id. Instead, we conclude a limiting instruction would have cured this error and thus cannot conclude the trial court erred in denying a mistrial or in denying appellant's motion for new trial. See Ocon, 284 S.W.3d at 884.
We overrule appellant's first issue.
II. Testimony from Complainant's Mother
In his second issue, appellant complains the trial court erred by overruling his objections to testimony from K.I.'s mother. On direct examination, K.I.'s mother testified:
Q: Was there ever anything else that you recall—well, did you ever get upset with anything that he either said or did with [K.I.]?
A: He brought her marijuana, and I—I found him giving it to her in the garage.
Q. You saw that?
A. Yeah. And he said he did it because he didn't want her getting it from somebody else.
Defense counsel then requested a hearing outside the jury's presence to object to this testimony as violating rule 404(b) and as being substantially more prejudicial than probative. At the conclusion of the hearing, the trial court overruled appellant's objection. Some time later, K.I. also testified, without objection, that appellant had given her marijuana at her house. The State argues appellant waived his earlier objection by failing to obtain a running objection to any evidence on the subject and by later failing to object to the admission of the same evidence. However, because the trial court heard appellant's objection outside the presence of the jury and ruled the evidence was admissible, appellant was not obliged to renew his objection. See TEX. R. EVID. 103(b); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) ("When the court, out of the jury's presence, hears and overrules objections to evidence, those objections need not again be made before the jury when the evidence actually is presented to the jury.").
Assuming, without deciding, the trial court erred in admitting the foregoing evidence, we may not reverse if we, after examining the record as a whole, have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. See TEX. R. APP. P. 44.2(b); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (conducting harm analysis pursuant to rule 44.2(b) after concluding admission of extraneous act testimony erroneous). In assessing the likelihood that the jury's decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error. Id. at 518-19.
Here, the evidence against appellant was strong and the complained-of evidence was not likely to detract the jury's consideration of the central issue before it—whether appellant sexually assaulted K.I., a child younger than 17 years of age. K.I. and her mother testified K.I. was sixteen years old on the evening of June 21, 2013. K.I.'s testimony established that on that evening in appellant's parked car, appellant touched K.I.'s breasts over her clothes and her genitals with his hands, and that he had sexual intercourse with her. The record also contained the SANE exam report from March 2014, which included many of the same details K.I. described in her testimony, including meeting appellant at Starbucks earlier that day, that he gave her drugs and an alcoholic beverage, and that appellant assaulted K.I. in his car was when he was supposed to have been driving her home. The detective who interviewed K.I. and appellant testified, and a video recording of his interview of appellant was published to the jury. In the interview, appellant admitted to having met K.I. in a Starbucks and asking to take her to dinner alone in order to get her to talk to him more than she had in front of her mother. He states that after leaving the restaurant around 10 p.m., he and K.I. drove around for an unspecified amount of time before his car broke down and required him to spend hours attempting to repair the car. Appellant also describes talking on his cell phone with his investigator whom K.I.'s mother had called several times, but he does not explain why he did not try to talk to K.I.'s mother himself. The record contains sales records from the gas station store showing his purchase of alcohol. K.I. testified that appellant purchased himself beer and her a Four Loko. The store's records reflect that those were purchases around the time K.I. testified she and appellant stopped there. Further, the State did not emphasize the evidence concerning appellant's provision of marijuana. Instead, it briefly mentioned it in closing arguments and during the questioning of K.I. about the incident in fewer than ten questions.
As part of closing arguments, the prosecutor argued:
[Appellant] gives her drugs - a drug addict. And not - not just the Xanax, ladies and gentlemen, not just the alcohol. But you also heard from both [K.I.'s mother and K.I.] who corroborated that after 6.21 of 2013, the defendant brought her marijuana because she asked for it and he said he could get it. That's not a coincidence. He was doing that to continue to have her keep the lie, have her keep his secret.
One of the State's theories was that appellant engaged in grooming behaviors with K.I. in order to gain further access to her and to induce her to maintain her silence regarding the assault. The forensic interviewer from the Children's Advocacy Center who interviewed K.I. defined grooming to be "where an offender gains either trust or physical - breaks down physical or emotional barriers in order to gain access to offend at a later date." Testimony from the State's witnesses established appellant was aware of K.I.'s eating disorder, past sexual assault, drug abuse, and her contentious relationship with her parents, thus making her vulnerable to manipulation by someone in a position of trust and power—like her attorney. Appellant then suggested taking K.I. to dinner without her parents. Through K.I.'s testimony, the State established appellant showed her he had a gun and then provided K.I. with alcohol, Xanax, and money the night of the assault, and later—as appellant admitted in an interview with the investigating detective—he gave her a cell phone. The State's evidence also established appellant engaged in grooming activities of telling K.I. she was beautiful, she was prettier than her sister, she should get emancipated from her parent's guardianship, and he would protect her from the cartels because her parents were not doing a good job of taking care of her. We conclude that the evidence that appellant once provided K.I. with marijuana fits in with the State's grooming theory, and—in addition, there was a great deal of evidence of grooming aside from that challenged evidence to support the State's grooming theory.
The forensic interviewer defined a forensic interview as "a legally defensible, fact-finding interview that's done at the request of law enforcement or child protective services. And it's done by somebody who's trained in forensic interviewing."
In light of this record, we conclude the challenged evidence had but a slight effect on the jury's ultimate decision.
Additionally, and as part of his second issue, appellant reurges his complaint concerning K.I.'s statement that "I'm not the only girl," suggesting the cumulative effect of testimony concerning marijuana was collectively harmful. Stahl v. State, 749 S.W.2d 826, 828 (Tex. Crim. App. 1988) ("Given this situation, the Court of Appeals held that the cumulative effect of the outburst and improper jury arguments could not be cured by the judge's instructions to the jury."). Having reviewed the entire record and given the strength of the evidence of appellant's guilt, even assuming without deciding admission of K.I.'s statement was error, we cannot conclude that its admission and that of the complained of statements of K.I.'s mother were harmful in their cumulative effect so as to warrant reversal of his conviction. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (citing United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) ("The cumulative error doctrine provides relief only when constitutional errors so 'fatally infect the trial' that they violated the trial's 'fundamental fairness.'")). We thus resolve appellant's second issue against him.
III. Limitations on Cross-examination of Complainant
In his third issue, appellant urges the trial court's limitations on cross-examination of K.I. violated his state and federal rights to confrontation and cross-examination of witnesses. Specifically, appellant complains the trial court refused to allow him to introduce evidence that K.I. had been charged with assault on a public servant in Denton County, her prior history of claimed seizures, and her past and recent drug usage. According to appellant, the trial court's decisions limited his ability to cross-examine K.I. in violation of his rights to confrontation and cross-examination under the Sixth Amendment of the Constitution and Article I, Section 10 of the Texas Constitution, and his right to put on a defense under the Sixth Amendment. The State responds that appellant failed to preserve this issue because he never obtained a ruling on whether he could cross-examine K.I. about any pending charges, about whether she had seizures, or about her drug use immediately prior to trial.
The State also argues that appellant's third issue is multifarious. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010) ("point of error is multifarious because it raises more than one specific complaint"). Appellant responds that he has raised more than one complaint all based on one legal theory of unconstitutional limitation on his right to confront and cross-examine witnesses. We will address the complaints we can identify with reasonable certainty. See Gilley v. State, 418 S.W.3d 114, 119 n.19 (Tex. Crim. App. 2014).
A. October 2017 Incident
Prior to trial, defense counsel attempted to obtain evidence of an incident that occurred in October 2017, more than four years after appellant assaulted K.I. According to defense counsel, in October 2017, K.I. was transported to the Denton Regional Medical Center where she complained of seizures and, when a doctor told she was not having seizures, K.I. cursed at the doctor and struck a medical attendant. Defense counsel also asserted that when K.I. was arrested for assault on a public servant, K.I. claimed she could not be arrested because she was a witness in the present case. Defense counsel issued subpoenas and subpoenas duces tecum for witness testimony and records related to the October 2017 incident and argued the evidence would be used for impeachment purposes only.
The trial court conducted a hearing on a motion to quash the subpoenas of the police officers involved in the October 2017 incident. According to defense counsel, K.I. was attempting to use her status as a witness in the present case to "get out of trouble in other cases." Defense counsel also argued the evidence would be used to show K.I.'s "general conduct for untruthfulness." He further stated that if K.I. admitted to the October 2017 incident, he would not call the police officers as witnesses. The trial court quashed defense counsel's subpoenas as to the police officers involved in the October 2017 incident, but granted defense counsel's request to make a proffer "if and when we get to that point."
The record reflects defense counsel explained and the trial court understood he wished to use the police officers' testimony to impeach K.I. on her motive to testify in this case and to show her general lack of truthfulness. However, the record does not contain any request to admit or exclude evidence relating to the October 2017 incident other than the police officers' subpoenas. Accordingly, as to any other subpoenas and subpoenas duces tecum for witness testimony and records related to the October 2017 incident, he has failed to preserve any argument that such evidence was excluded. See TEX. R. APP. P. 33.1; Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018).
We now turn to appellant's arguments regarding the exclusion of testimony of the police officers who were present during the October 2017 incident.
Generally speaking, the Texas Rules of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition. See Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). Rule 608 permits an attack on the witness's general reputation for truthfulness but prohibits a party to inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack the witness's character for truthfulness. See TEX. R. EVID. 608. Further, we recognize that, although the defendant does not have an absolute right to impeach the general credibility of a witness, the Constitution could be offended if a state evidentiary rule prohibited the defendant from cross-examining a witness concerning possible motives, biases, and prejudices to such an extent he could not present a vital defensive theory. Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016).
Nonetheless, the trial judge retains wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010). The constitutional right to cross-examine concerning the witness's potential bias or prejudice does not include cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Id. In the context of cross-examination of a witness with pending charges, for the evidence to be admissible, the proponent must establish some causal connection or logical relationship between the pending charges and the witness's vulnerable relationship or potential bias or prejudice for the State, or testimony at trial." Id. at 147. That is, a "vulnerable relationship" based on a witness's pending charges or probationary status does not hover cloud-like in the air, ready to rain down as impeachment evidence upon any and all such witnesses. Id. at 147-48. There must be some logical connection between that "vulnerable relationship" and the witness's potential motive for testifying as he does. Id. at 148.
Appellant argues evidence of K.I.'s charge of assault on a public servant would show that her motive to testify against appellant was to ingratiate herself with law enforcement and to avoid her legal problems. Appellant's arguments ignore the record that shows K.I.'s outcry against appellant and her forensic interview was in January 2014, years before her arrest for assault on a public servant. Thus, appellant's arguments do not establish a logical connection between her defendant status in the assault on public servant case and her testimony against appellant. Accordingly, we cannot conclude that the trial judge abused his discretion in excluding evidence of K.I.'s charge of assault on a public servant.
B. Complainant's Alleged Drug Use
On the first day of trial, defense counsel sought to compel K.I. to be tested for illegal drugs. The trial court agreed, and the next day, an attorney for K.I. appeared and objected to the trial court's requiring K.I. to provide a urine sample. The trial court instead required K.I. to submit to an evaluation by a Drug Recognition Expert. K.I. did so, and the trial court reviewed and sealed the resulting report so that it was unavailable to either the defense or prosecution during trial.
Prior to K.I.'s testimony, defense counsel reiterated the request to compel K.I. to provide a urine sample to be tested for drugs and "that we be allowed to inquire—that the Court inquire whether or not she has used any drugs in the last five days." The trial court denied the request and noted defense counsel's objection.
The record reflects defense counsel explained and the trial court understood that appellant wanted to test K.I. for recent drug use and to use any positive drug test results to impeach her testimony as to whether she had used drugs recently.
Rule 608(b) mandates that "[s]pecific acts not resulting in conviction may not be used to demonstrate the witness's untrustworthy nature." See TEX. R. EVID. 608. However, again, we recognize the Constitution could be offended if a state evidentiary rule prohibited the defendant from cross-examining a witness concerning possible motives, biases, and prejudices to such an extent he could not present a vital defensive theory. Johnson, 490 S.W.3d at 910. In determining whether evidence must be admitted under the Confrontation Clause, the trial court must balance the defendant's right to cross-examine and the probative value of the proffered evidence against the risk factors associated with admission of the evidence. Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016). The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id.
After reviewing the facts of this case, we cannot conclude that the trial judge abused his discretion in excluding evidence of K.I.'s alleged recent drug usage. The evidence of whether K.I. had recently taken drugs was not probative of whether appellant assaulted K.I. It was not even marginally relevant. Appellant, on appeal, urges such evidence would be used to support speculation with respect to a motive to testify: to avoid prosecution for drug usage. However, this asserted motive is outweighed by the significant risk that the jurors might be distracted from this case and might disregard appellant's actions. See id. Further, the record reflects appellant was specifically allowed to cross-examine K.I. regarding her drug use around the time of the offense and that K.I. never testified, and was never questioned, whether she had recently used drugs. After reviewing the record as a whole, we cannot conclude the trial court abused its discretion or violated appellant's rights to confrontation and cross-examination under the Sixth Amendment and Article I, Section 10, and his right to put on a defense under the Sixth Amendment.
We overrule appellant's third issue.
IV. Double Jeopardy Implications of Consecutive Sentences
In his fourth issue, appellant argues his federal and state rights against double jeopardy were violated when one of the counts of indecency with a child by contact was ordered to be served consecutive to the other count of indecency and the count of sexual assault.
The court's charge on Counts I, III, and IV authorized the jury to find appellant guilty if they found as follows:
Count I: appellant intentionally or knowingly caused the penetration of the female sexual organ of K.I. by means of appellant's male sexual organ.The jury found appellant guilty on all three counts. For each count, the jury sentenced appellant to twenty years' confinement and assessed a fine of $10,000. On the State's motion, the trial court ruled the sentence in Count III would run concurrently with the sentence in Count I, but that the sentence in Count IV would run consecutive to the sentences in Counts I and III. Appellant argues that the acts alleged in Counts III and IV were subsumed by the act alleged in Count I such that his double jeopardy rights were violated by there being more than one conviction arising from one criminal act committed by appellant. The State responds that each one of appellant's convictions was the result of a separate impulse and separate crime and thus did not violate double jeopardy.
Count III: appellant intentionally or knowingly, with the intent to arouse or gratify the sexual desire of any person, engaged in sexual contact by touching the breast of K.I. with appellant's hand.
Count IV: appellant intentionally or knowingly, with the intent to arouse or gratify the sexual desire of any person, engaged in sexual contact by touching K.I.'s genitals with appellant's hand.
The Fifth Amendment provides, "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]" Fifth Amendment. To determine what constitutes the "same offense," we look to whether the offense is a single continuous act, with a single impulse. See Aekins v. State, 447 S.W.3d 270, 275 (Tex. Crim. App. 2014). If more than one statutory offense is necessarily committed by that single criminal act and impulse, then the offenses merge and the defendant may be punished only once. Id. A person who commits more than one sexual act against the same person may be convicted and punished for each separate and discrete act, even if those acts were committed in close temporal proximity. Id. at 278. The key is that one act ends before another act begins. Id. The defendant might touch a child's breast before he touches her genitals. See id. In such a case, the two separate acts result from two separate impulses and support two separate crimes. See id.
The testimony at trial established that appellant's assault of K.I. took place during one evening. After first stopping at a convenience store to purchase an alcoholic beverage for K.I., appellant drove K.I. to a neighborhood where he parked his car. Then appellant reached over to K.I. and touched her breasts over her clothes with his hands. Appellant then began to touch K.I.'s genitals. She told him to stop. But when appellant looked at her with a confused and angry expression, and believing she needed to have sex with appellant in order for him to like her, K.I. said, "okay." According to trial testimony, appellant and K.I. then climbed into the backseat of appellant's car where he proceeded to have sexual intercourse with her.
Appellant argues his intent and impulse was to engage in sexual intercourse with K.I. and thus his touching of K.I.'s breasts and genitals was merely preparatory to, or coincident to, the penetration offense. He urges nothing in the criminal statutes prohibiting sexual contact and penetrations with children like K.I. indicate a legislative intent to permit a "stop action" prosecution in which every motion along the path to penetration may be punished separately. Appellant further urges that this Court consider, in this case of an attorney sexually assaulting his underage client, that "the reality of normal human sexual conduct where sexual contact usually escalates from contact with one body part, to contact with another body part, to conclude in the ultimate act of sexual intercourse."
We reject appellant's arguments as, among other things, conflicting with the precedent set forth in Aekins. In Aekins, the defendant assaulted the complainant by performing oral sex on her against her will and then putting his fingers insider her vagina against her will. Aekins, 447 S.W.3d at 273. The defendant was charged and found guilty of (1) causing penetration of the victim's female sexual organ with his finger, (2) causing penetration of the victim's female sexual organ by his mouth or tongue, and (3) causing the victim's female sexual organ to contact his mouth. Id. at 273. The court of criminal appeals found counts 2 and 3 to be the "same" under the law because the testimony supported the contention that the sexual assault consisted of a single incident that occurred within the span of minutes. See id. at 282. The court held an indecent contact that is not simply preparatory to an act of penetration is itself a complete ultimate act—the result of a fresh impulse. Id. Thus, the defendant could be punished for two penetrations (by finger and by mouth) without offending the Double Jeopardy Clause. Id.
We find the instant case to be more similar to the example set forth by the Aekins court that "[t]he defendant might touch a child's breast; then he touches her genitals. Two separate acts, two separate impulses, two separate crimes." See Aekins, 447 S.W.3d at 278. There is nothing inevitable in the course of the assault in this case that required each of the offensive actions to occur in the course of any other of them. We decline to adopt a rule that would leave to the offending assaulter the decision of how many offenses he or she considers "natural" or likely in the course of his or her ultimate criminal objective.
Accordingly, we overrule appellant's fourth issue.
V. Expert Testimony during Punishment Phase of Trial
In his fifth issue, appellant complains the trial court erred by failing to allow the presentation of expert testimony by appellant about his medical condition during the punishment phase of trial.
Appellant urges that at a hearing on his motion for new trial, he established the evidence and testimony he believed should have been presented to and considered by the jury in reaching its sentencing decision. The State responds that such evidence was untimely offered and thus cannot be considered in determining whether the trial court erred in its decision to limit the testimony of Dr. Martin Harssema, an anesthesiologist and appellant's brother. To complain of the ruling limiting Dr. Harssema's testimony, appellant had to make an offer of the excluded testimony as soon as practicable, but before the court's charge was read to the jury. See Hernandez v. State, 127 S.W.3d 206, 217 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (citing TEX. R. EVID. 103). Waiting to make an offer of proof until filing his motion for new trial did not suffice. See id. Accordingly, we do not consider the evidence presented in appellant's motion for new trial or at the hearing on the same when assessing the validity of the trial court's evidentiary ruling and will focus on the record prepared by appellant at the punishment phase of trial.
We now consider whether the trial court erred in limiting the testimony of the only witness for the defense called at the punishment hearing. Dr. Harssema testified that in early 2014 appellant came to live with him while struggling with an opioid addiction and depression. After becoming concerned about some of appellant's behaviors, Dr. Harssema arranged for appellant to see a neurologist in 2016. When Dr. Harssema was questioned as to appellant's diagnosis, the prosecutor objected on the grounds that such testimony was hearsay. The trial court sustained the State's objection. Dr. Harssema then testified that because of appellant's condition, Dr. Harssema obtained a power of attorney to manage appellant's finances and to be his caregiver. Defense counsel asked Dr. Harssema to define neurodegenerative disorders, at which point the prosecutor objected to Dr. Harssema's expertise and requested to question Dr. Harssema on voir dire. Dr. Harssema testified that as part of his medical education, he had learned about the basics of neurology and movement disorders and that part of his training in anesthesiology was learning about how degenerative conditions affect muscles. The trial court ruled that Dr. Harssema would be permitted to testify about "medical conditions that he has knowledge of from his experience, education, or training but not as to any specific medical conditions that the defendant has unless he was treating him."
Dr. Harssema went on to testify that after appellant was diagnosed with an unspecified neurological condition, he looked for certain behaviors in order to determine how best to care for appellant, including difficulty in completing tasks, short-term memory lapses, problems with emotional control, and difficulty with behaving appropriate socially. Dr. Harssema further testified it was his belief appellant's condition would decline, but when questioned as to whether appellant would die as a result of his condition, the trial court sustained an objection from the prosecutor that such testimony called for speculation, violated rule 403 of the rules of evidence, and constituted hearsay.
On appeal, we review a trial court's admission or exclusion of evidence for abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Id. at 669.
Hearsay is defined to encompass an out of court statement offered for the truth of the matter asserted and is generally inadmissible. See TEX. R. EVID. 801(d); 802. However, an expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed even if those facts or data themselves are not admissible. See TEX. R. EVID. 703.
The Texas Rules of Evidence set forth three separate conditions regarding admissibility of expert testimony. Vela v. State, 209 S.W.3d 128, 130-31 (Tex. Crim. App. 2006) (citing TEX. R. EVID. 104(a), 401, 402, 702). These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony: "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Id. at 131. These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id. Only the first condition is at issue in this case.
The mere fact that a witness possesses knowledge and skill not possessed by people generally does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court. See id. A witness will not always qualify as an expert merely by virtue of a general background. See id. Accordingly, qualification is a two-step inquiry: (1) a witness must first have a sufficient background in a particular field, but (2) a trial judge must then determine whether that background goes to the very matter on which the witness is to give an opinion. See id. The focus, then, is on the fit between the subject matter at issue and the expert's familiarity therewith. See id. at 133. Just as the subject matter of an expert's testimony should be tailored to the facts of a case, the expert's background must be tailored to the specific area in which the expert desires to testify. See id.
Appellant argues that Dr. Harssema's medical education included neurology and movement disorders and that his training and practice in anesthesiology required knowledge about diseases of the brain and brain function. Appellant also urges that Dr. Harssema had been present for appellant's medical appointments from which he would have heard the name of appellant's medical condition and that Dr. Harssema had researched appellant's medical condition. However, when questioned on voir dire, Dr. Harssema testified that he did not have the necessary training or experience to discuss movement disorders or neurology in great detail. Further, Dr. Harssema did not specify what his medical research or specialized research entailed. A trial court is not compelled to permit every licensed medical doctor to testify as an expert on every medical question that might arise in a case. See Vela, 209 S.W.3d at 132. Based on the record before us, we cannot conclude the trial court abused its discretion in limiting Dr. Harssema's testimony to "medical conditions that he has knowledge of from his experience, education, or training but not as to any specific medical conditions that the defendant has unless he was treating him."
We overrule appellant's fifth issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
180898F.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-80837-2018.
Opinion delivered by Justice Schenck. Justices Bridges and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 20th day of February, 2020.